Discuss: Can a sitting President be indicted?

[TexasTiger 13,028]

If you think no, why not? What’s the basis?

[DKW 86 7,441]

IMHO:

He might be indicted, but I think the case would have to wait until after he was out of office. 

There is only one way to address a president. Impeachment. Otherwise you could indict him on anything and basically grind the country to a halt. Think if FDR would have been hampered during the Recovery by a 100 indictments...Or during WWII by Nazi Sympathizers. 

And here is where we use the old worn out bromide about indicting a ham sandwich...

[NolaAuTiger 3,295]

12 hours ago, TexasTiger said:

If you think no, why not? What’s the basis?

No. The Nation and its citizens are entitled to a President who is able to govern the country without the disruption of a criminal indictment. The President should be immune from criminal indictment because of the constitutional requirement of separation of powers and the uniqueness of the President's office. Moreover, the Constitution provides impeachment as the means for removing a President from office. Certainly, if the President committed a serious offense requiring immediate prosecution, impeachment is available, followed by criminal prosecution.

In order to preserve the constitutional separation of powers and to promote the proper fulfillment of the Executive branch's authority, the President must enjoy a temporary immunity from criminal prosecution. This is the only way to guarantee that the President is free to carry out the duties of the Executive office.

 

 Some argue that the  President is subject to indictment like all other elected officials. Others believe that it is uncertain whether a sitting President can be criminally indicted. However, these arguments ignore some commentators' conclusions that the President is immune from indictment because, as Justice Story stated, “the President is not liable to arrest, imprisonment, or detention, during the discharge of the duties of his office." Although the Constitution lacks an explicit description of what immunity the President possesses, it does describe certain immunities afforded to other government officials - which also implies something re president indictment.

[TexasTiger 13,028]

1 hour ago, NolaAuTiger said:

No. The Nation and its citizens are entitled to a President who is able to govern the country without the disruption of a criminal indictment. The President should be immune from criminal indictment because of the constitutional requirement of separation of powers and the uniqueness of the President's office. Moreover, the Constitution provides impeachment as the means for removing a President from office. Certainly, if the President committed a serious offense requiring immediate prosecution, impeachment is available, followed by criminal prosecution.

In order to preserve the constitutional separation of powers and to promote the proper fulfillment of the Executive branch's authority, the President must enjoy a temporary immunity from criminal prosecution. This is the only way to guarantee that the President is free to carry out the duties of the Executive office.

 

 Some argue that the  President is subject to indictment like all other elected officials. Others believe that it is uncertain whether a sitting President can be criminally indicted. However, these arguments ignore some commentators' conclusions that the President is immune from indictment because, as Justice Story stated, “the President is not liable to arrest, imprisonment, or detention, during the discharge of the duties of his office." Although the Constitution lacks an explicit description of what immunity the President possesses, it does describe certain immunities afforded to other government officials - which also implies something re president indictment.

So if he went on a killing crime spree while the Congress was recessed, what could be done?

[NolaAuTiger 3,295]

6 minutes ago, TexasTiger said:

So if he went on a killing crime spree while the Congress was recessed, what could be done?

That hypothetical exceeds the bounds of reason for purposes of the discussion. You’re smarter than that.

[DKW 86 7,441]

2 hours ago, TexasTiger said:

So if he went on a killing crime spree while the Congress was recessed, what could be done?

He could be arrested by US Marshalls or the FBI or by the Secret Service and held until Congress reconvened.

[homersapien 11,453]

2 hours ago, NolaAuTiger said:

That hypothetical exceeds the bounds of reason for purposes of the discussion. You’re smarter than that.

What BS.  Hypotheticals are essential to delving into the essentials of an argument.

It's a tool, used by all "smart" thinkers. Anyone who professes such interest in  SCOTUS debates (for example) would already know that.

[TexasTiger 13,028]

2 hours ago, DKW 86 said:

He could be arrested by US Marshalls or the FBI or by the Secret Service and held until Congress reconvened.

Held without charge?

[DKW 86 7,441]

4 hours ago, TexasTiger said:

Held without charge?

He has to be arraigned to be released, even for bail. Who is going to arraign a sitting President? Only the HOR can do that. He would have to be arraigned by the singular reigning accusatory body which would be the HOR. The VP would already be acting President anyway. Any appeals by POTUS could only go to SCOTUS and they would likely have to be reconvened as well.

[TexasTiger 13,028]

1 hour ago, DKW 86 said:

He has to be arraigned to be released, even for bail. Who is going to arraign a sitting President? Only the HOR can do that. He would have to be arraigned by the singular reigning accusatory body which would be the HOR. The VP would already be acting President anyway. Any appeals by POTUS could only go to SCOTUS and they would likely have to be reconvened as well.

That legal process isn’t in the Constitution or federal law, to my knowledge.

[DKW 86 7,441]

20 minutes ago, TexasTiger said:

That legal process isn’t in the Constitution or federal law, to my knowledge.

It isnt. I am assuming normal flow of a case and who has the ability to act.

[TexasTiger 13,028]

26 minutes ago, DKW 86 said:

It isnt. I am assuming normal flow of a case and who has the ability to act.

The normal flow of criminal cases is based on procedural laws. This would be ad hoc. 

[NolaAuTiger 3,295]

On 3/28/2018 at 10:28 PM, homersapien said:

What BS.  Hypotheticals are essential to delving into the essentials of an argument.

It's a tool, used by all "smart" thinkers. Anyone who professes such interest in  SCOTUS debates (for example) would already know that.

It in no way addresses the substance of my claim. Much like your post. It's not a reasonable hypothetical in an objective sense. It's an unfathomable extreme. I mean good grief if The President of The United States went on a killing spree.... 

Never preach to me about "smart" thinkers again. The hypothetical posed by Tex isn't even consistent with historic legal commentary among those who argue that a President can be indicted. Two hundred years of legal though doesn't utilize such extremes to delve into the argument. Anyone in their right mind knows it's just a last resort effort. 

The Supreme Court doesn't debate. They issue concurrences and dissents to majority opinions. Stick with science.

If you want to delve into the essentials of my argument, then feel free - but reaching so far up your ass that you feel teeth, won't cut it. The chances of a President going on a killing spree are about as good proving aliens exist.

[NolaAuTiger 3,295]

1 hour ago, TexasTiger said:

The normal flow of criminal cases is based on procedural laws. This would be ad hoc. 

You obviously don't know what you're talking about. Criminal cases are based both on procedural and substantive law.

[NolaAuTiger 3,295]

10 hours ago, DKW 86 said:

He could be arrested by US Marshalls or the FBI or by the Secret Service and held until Congress reconvened.

But then what if aliens came down and took him into their spaceship?

[NolaAuTiger 3,295]

 

Can We Indict a Sitting President? Susan Low Bloch

Georgetown University Law Center, bloch@law.georgetown.edu

Georgetown University Law Center Scholarship @ GEORGETOWN LAW

1997

 

This symposium addresses the difficult question of whether a President can be criminally prosecuted while still in office or whether indictment and prosecution must await his leaving. The question is difficult because the text ofthe Constitution gives us some hints but no dispositive answers. At first reading, Section 3 ofArticle I seems to suggest that impeachment must precede any criminal prosecution: "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." Thus, the provision suggests it may be prescribing a temporal order - impeachment and then prosecution. However, closer analysis reveals that the provision may simply be defining and limiting the effects of impeachment and making clear that other punishments can be still imposed by the criminal process without violating any prohibitions against doublejeopardy; it may not be addressing the issue of order at all.

In attempting to answer this thorny question, the articles in this symposium run the full gamut. On one side of the debate is the conclusion offered by Professor Akhil Amar and Brian Kalt, who argue that the President is unique and cannot be subject to prosecution by state or federal systems while in office. He must first be removed either by impeachment, the voters, or the expiration of his term. They infer this temporary immunity from Article H1 and the separation- of-powers ofthe Constitution.

Professor Jay Bybee also concludes that impeachment must precede criminal indictment and prosecution, but he goes farther than Amar and Kalt in applying that rule not only to the President but to all federal officers subject to impeachment, i.e., the Vice President, federal judges, and all civil officers of the United States. In his view, both the text of the Constitution and policy considerations dictate this conclusion. However, Professor Bybee treats civil actions against Presidents differently; in particular, he concludes that sitting Presidents have no temporary immunity from civil actions.

Professor Scott Howe presents a slightly different view. In his opinion, the Constitution cannot be read to provide a sitting President any temporary immunity from prosecution. However, he believes that policy arguments favor such an immunity as a matter of federal common law. While Professor Howe's analysis is similar to that of Professor Amar and Brian Kalt, Howe's conclusion that the immunity is not constitutionally required can have important implications. If immunity is only a matter of federal common law, as Professor Howe suggests, then Congress can change it at any time. Congress can restrict its scope, eliminate the immunity entirely, or expand its usage. If, on the other hand, the Constitution provides the immunity, as Amar and Kalt, and Bybee believe, Congress cannot eliminate it.

Professor Howe goes on to examine how far the immunity extends. He concludes that it should apply as well to the Vice President, but not to the President's spouse. He also suggests that temporary immunity should apply to civil as well as criminal cases. Thus, he agrees with the position being advocated by President Clinton's lawyers in the Supreme Court in the Clinton v. Jones case. The one distinction between Professor Howe's position and that being argued by the President's lawyers is that Howe believes this immunity is a matter only of federal common law; the President's lawyers argue the immunity is to be inferred from the Constitution.

On the other extreme is the view of Professor Eric Freedman: sitting Presidents are not immune from criminal prosecution. Analyzing the constitutional text, the Framers' debates, historical precedent with respect to other federal officials, as well as policy arguments, Professor Freedman finds no support for such immunity; moreover, he sees no need to infer it. While he does not explicitly discuss the question of immunity for civil actions, I suspect his analysis would also lead him to conclude that there shall not be any immunity from civil actions.

Terry Eastland offers an interesting perspective on Professor Freedman's theme. He agrees there is no constitutional immunity from criminal prosecution for a sitting President. Nor does he believe that any immunity should be found in federal common law. But he suggests that whether or not a prosecution goes forward is entirely in the control of the President. Because the President has the responsibility under Article II, Section 3, to take care that the laws are faithfully executed, and has the power under Article II, Section 2, to pardon, including, in Eastland's view, the power to pardon himself the President can control whether or not he is indicted, prosecuted, and sentenced. The only check on the President's use of these powers is a political check by the people and Congress' power to impeach. Thus, if the President wants either to order the suspension of a prosecution or to pardon himself, and is willing to take the political consequences, nothing in the Constitution precludes his doing that.

Professor Erwin Chemerinsky addresses a somewhat different question and concludes that there should be no temporary immunity for civil actions against a sitting President for conduct unrelated to the presidency. Thus, in his view, civil suits against the President for unofficial acts can proceed while the President is still in office. In particular, he believes that Paula Jones'

sexual harassment suit against President Clinton for conduct allegedly occurring prior to his presidency can proceed immediately.' Professor Chemerinsky does not indicate whether he believes there is also no temporary immunity for criminal actions but much of his reasoning suggests that he is likely to agree with Terry Eastland and Professor Eric Freedman.

As these articles indicate, the questions raised by the prospect of suing a sitting President are not easy to resolve. And while it would be good if we never had to answer them, history indicates they cannot be avoided. The Supreme Court will give us some answers in the Jones case now pending before it; while that case addresses only the question of civil actions against a sitting President, the Court's analysis may give us at least some guidance on the issue ofcriminal prosecutions as well. 

[homersapien 11,453]

On 3/29/2018 at 8:23 AM, NolaAuTiger said:

bull****. It in no way addresses the substance of my claim. Much like your post. It's not a reasonable hypothetical in an objective sense. It's an unfathomable extreme. I mean good grief if The President of The United States went on a killing spree.... 

Never preach to me about "smart" thinkers again. The hypothetical posed by Tex isn't even consistent with historic legal commentary among those who argue that a President can be indicted. Two hundred years of legal though doesn't utilize such extremes to delve into the argument. Anyone in their right mind knows it's just a last resort effort. 

The Supreme Court doesn't debate, halfwit. They issue concurrences and dissents to majority opinions. Stick with science.

If you want to delve into the essentials of my argument, then feel free - but reaching so far up your ass that you feel teeth, won't cut it. The chances of a President going on a killing spree are about as good proving aliens exist.

Exploration of issues using hypotheticals is a very common practice - particularly in discussions of the application of law at the highest level.

This particular one is in no way so extreme as to be useless.  In fact, Trump proposed it himself during the election to illustrate the blind allegiance of his followers.  The question on the table is whether or not the POTUS can be indicted.  Murder is a perfect hypothetical crime to examine that case.

 

 

[Strychnine 1,804]

14 hours ago, TexasTiger said:

So if he went on a killing crime spree while the Congress was recessed, what could be done?

 

In reality, I think that if a President was suspected of having engaged in some kind of criminal activity that warranted his immediate removal from office, the Vice President and Cabinet would use the 25th Amendment to take over until Congress could sort it out.  Further, I suspect the Secret Service would keep the President basically under house arrest while that transpired.

[homersapien 11,453]

3 hours ago, Strychnine said:

 

In reality, I think that if a President was suspected of having engaged in some kind of criminal activity that warranted his immediate removal from office, the Vice President and Cabinet would use the 25th Amendment to take over until Congress could sort it out.  Further, I suspect the Secret Service would keep the President basically under house arrest while that transpired.

Sounds nice in theory but, bottom line - at least in this case - it would be up to Mike Pence and whoever is still in Trump's cabinent.   That's small comfort.  

 

 

[AUFAN78 3,926]

20 hours ago, NolaAuTiger said:

That hypothetical exceeds the bounds of reason for purposes of the discussion. You’re smarter than that.

ughhhhhh........

[NolaAuTiger 3,295]

7 hours ago, homersapien said:

Exploration of issues using hypotheticals is a very common practice - particularly in discussions of the application of law at the highest level.

This particular one is in no way so extreme as to be useless.  In fact, Trump proposed it himself during the election to illustrate the blind allegiance of his followers.  The question on the table is whether or not the POTUS can be indicted.  Murder is a perfect hypothetical crime to examine that case.

And a little advice:  While this is the "trash talk" forum, your childish reliance on insults only reveals your immaturity and the insecurity that entails. 

 

See my link Homer. Notice the differences. This actually isn’t the smack talk forum. I shouldn’t have insulted you. My apologies. 

Hypos aren’t bad at all, but they should at least be objectively realistic. 

[homersapien 11,453]

17 hours ago, NolaAuTiger said:

See my link Homer. Notice the differences. This actually isn’t the smack talk forum. I shouldn’t have insulted you. My apologies. 

Hypos aren’t bad at all, but they should at least be objectively realistic. 

My bad.  I couldn't tell.  Apparently, we just can't count on consistent refereeing.  

But seriously, a hypothetical involving a POTUS and a murder is not objectively unrealistic? 

Ever heard of Vince Foster? 

He's only one of several murders your "tribe" proposed as fact.  Are we now admitting such accusations were never "objectively realistic"? 

Or are we using different standards?

[TexasTiger 13,028]

On 3/28/2018 at 8:19 PM, NolaAuTiger said:

That hypothetical exceeds the bounds of reason for purposes of the discussion. You’re smarter than that.

Processes have to handle potential cases. Saying the legal system doesn’t apply to someone, especially when the Constitution doesn’t say that, is a pretty extreme position. My hypothetical shows the weakness of your position. 

What if a President commits numerous crimes but is protected by a party that fears primary voters that prefer the President to them? That hypothetical isn’t a stretch at all anymore.

[NolaAuTiger 3,295]

7 hours ago, homersapien said:

My bad.  I couldn't tell.  Apparently, we just can't count on consistent refereeing.  

But seriously, a hypothetical involving a POTUS and a murder is not objectively unrealistic? 

Ever heard of Vince Foster? 

He's only one of several murders your "tribe" proposed as fact.  Are we now admitting such accusations were never "objectively realistic"? 

Or are we using different standards?

Wow, what a stretch! Vince Foster is more a conspiracy theory. Besides, those who do “question” his suicide also don’t purport that Clinton blatantly did it - it’s more of an indirect nature. Very far from the “killing spree” hypo. So the Vince Foster thing, if an investigation revealed Clinton culpability, would more properly fall under conspiracy than first degree homicide as your colleague purports - in the case of a killing free.

But anyways, Vince Foster doesn’t discredit my original post. In fact, it enforces it. Immediate impeachment followed by indictment. 

Can you offer an exposition of your reasoning like I did above?

[NolaAuTiger 3,295]

5 hours ago, TexasTiger said:

Processes have to handle potential cases. Saying the legal system doesn’t apply to someone, especially when the Constitution doesn’t say that, is a pretty extreme position. My hypothetical shows the weakness of your position. 

What if a President commits numerous crimes but is protected by a party that fears primary voters that prefer the President to them? That hypothetical isn’t a stretch at all anymore.

Tex, the Constitution doesn’t even capture, or purport to capture every single event that “could” happen, as you seem to employ. Courts don’t stretch their opinions to unrestrained, never-ending boundaries. Does the legal system prepare and contemplate foreseeable events? Sure it does. But such foreseeability must be conditioned and balanced with reasonableness also. You’re hypothetical does not show the weakness of my position. Again, your assertions are incompatible with contemporary legal though, period. To say that the President going on a killing spree is a “potential case” literally strips all meaning from the term as it used today. Under you standard, courts would have to do away with “the spirit of the law” or, as liberal justices endorse, “purpovism.” There could be no justification of statutes based on purpose and policy because you could either manipulate, by unrestrained hypotheticals, what Congress actually meant or just blatantly disregard what they meant as well.

Per your second hypo, I have to ask follow up questions. How did we know the crimes were committed? And “who” are you referring to when you say “party?” 

Also, I do hope you offer an explanation too for which side of the fence you fall on. This is why I am hesitant to usually go into well-thought, comprehensive analysis of issues on here. It usually ends up only being met with little hypotheticals or one sentence is dissected from the whole.