@oralloy,
oralloy wrote:
neptuneblue wrote:And the DOJ does not have an official policy that states a sitting president cannot be indicted. An internal memo merely states that a president cannot fulfill presidential duties while under indictment. That's a far cry from stating emphatically that it cannot happen.
Actually that's exactly what it means.
neptuneblue wrote:It's never been challenged, so it will have to go to Court to decide.
No one has any standing to challenge it.
I disagree.
From DOJ's 10/16/00 brief, "A Sitting Presidents Amenability to Indictment and Criminal Prosecution" Clearly states:
U.S. Const, art. I, § 3, cl. 7. The textual argument that the criminal prosecution of a person subject to removal by impeachment may not precede conviction by the Senate arises from the reference to the “ Party convicted” being liable for “ Indictment, Trial, Judgment and Punishment.” This textual argument draws support from Alexander Hamilton’s discussion of this Clause in The Federalist Nos. 65, 69, and 77, in which he explained that an offender would still be liable to criminal prosecution in the ordinary course of the law after removal by way of impeachment. OLC Memo at 2.4
The OLC memorandum explained, however, that the use of the term ‘ ‘nevertheless”
cast doubt on the argument that the Impeachment Judgment Clause constitutes a bar to the prosecution of a person subject to impeachment prior to the termination of impeachment proceedings. Id. at 3. “ Nevertheless” indicates that the Framers intended the Clause to signify only that prior conviction in the Senate would not constitute a bar to subsequent prosecution, not that prosecution of a person subject to impeachment could occur only after conviction in the Senate.
Id. “
The purpose of this clause thus is to permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a double jeopardy argument.” Id.5 Be Indicted and Tried for the Same Offenses for Which He Was Impeached by the House and Acquitted by the Senate, 24 Op O L.C. I l l (2000)
4 In The Federalist No 69, Hamilton explained: The President of the United States would be liable to be impeached, tried, and upon conviction . . removed from office, and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the King of Great Britain is sacred and inviolable: there is no constitutional tribunal to which he is amenable, no punishment to which he can be subjected without involving the crisis of a national revolution The Federalist No. 69, at 416 (Alexander Hamilton) (Clinton Rossiter e d , 1961) (emphasis added). Similarly, in The Federalist No 65, he stated the punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.
Id. at 398-99 (emphasis added). Moreover, in The Federalist No. 77, he maintained that the President is “ at all times liable to impeachment, trial, dismission from office . . . and to the forfeiture of life and estate by subsequent prosecution in the common course of law ”
Id. at 464 (emphasis added) In addition, Governor Morris stated at the Convention that “ [a] conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try the President after the trial of the impeachment.” 2 Records of the Federal Convention o f 1787, at 500 (Max Farrand ed., 1974). 5
In our recent memorandum exploring in detail the meaning of the Impeachment Judgment Clause, we concluded that the relationship between this clause and double jeopardy principles is somewhat more complicated than the 1973 OLC Memo suggests See Whether a Former President May Be Indicted and Tried for the Same Offenses
