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Thu 7 Jun, 2018 02:05 pm
The Constitution makes plain that the "President, Vice President and all civil Officers of the United States, shall be removed from Office on impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." See The Constitution, Article II, Section 4.
The question posed currently is whether a President may be indicted which effectively, so many argue, hinders him performance of duties inherent in the office. It is evident that the President may not only be indicted, but he may be removed as well. The two possibilities are not mutually exclusive.
First, impeachment as promulgated by Article II, Section 4, deals exclusively with those political crimes committed by the President's in his official capacity. These are not crimes necessarily dealt with under a state's criminal code. There may be occasion to charge him under federal statute, but it is not necessary to do so in order to begin impeachment proceedings.
However, indictment for crimes normally found in the U.S. Criminal Code, Title 18, and those found under state criminal codes, such as murder, investment violations, etc., are indictable offenses which apply even to the President.
No one would argue that "civil Officers" of the United States cannot be indicted and tried in the U.S. court system as well as impeached under the Constitution. The argument that indictment and trial cannot be had against a president is also moot.
As to the constraints on a president in being tried, there is ample consideration given in the Constitution by the 25th Amendment which allows a president to be removed in case in case of inability of disability to prosecute the power and duties of his office. The workings of government will not ground to a halt simply because a president is treated as every other citizen is when called to answer for his crimes.
The idea that a president is above the law traffics in extreme concepts antithetical to the foundation of this Republic. It should not be said that "even the President is not above the law." It should be said that "the President, like every other citizen, must answer for his crimes."
@PARIPASSU,
PARIPASSU wrote:As to the constraints on a president in being tried, there is ample consideration given in the Constitution by the 25th Amendment which allows a president to be removed in case in case of inability of disability to prosecute the power and duties of his office. The workings of government will not ground to a halt simply because a president is treated as every other citizen is when called to answer for his crimes.
So the next time there is a Democratic president, all we need to do is have a Republican prosecutor indict him for something, and he's out of office? Cool!
One question though, when we try to force this future Democratic president out of office by indicting him, how do we prevent him from pardoning himself?
PARIPASSU wrote:The idea that a president is above the law traffics in extreme concepts antithetical to the foundation of this Republic. It should not be said that "even the President is not above the law." It should be said that "the President, like every other citizen, must answer for his crimes."
It's a bit late for that. Since the Democrats placed Bill Clinton above the law, the Republicans are well within their rights to place a Republican president above the law too (should a Republican president ever break the law).
@oralloy,
oralloy wrote:
... how do we prevent him from pardoning himself?...
The DOJ already said no to that. See:
https://www.justice.gov/sites/default/files/olc/opinions/1974/08/31/op-olc-supp-v001-p0370_0.pdf
Regardless of party, if that's attempted, I'm sure the 1974 opinion will be referenced.
@jespah,
I believe the same justice department also opined that a sitting president cannot be indicted in the first place.
@oralloy,
The DOJ once may have circulated a memorandum that inveighed against indictment, but that is not law. It is a constitutional matter, and if we seek guidance in the current setting, we need to refer to the Constitution of the United States. It is obvious that if a civil Officer of the United can be impeached, apart from the President, I do not believe anyone could argue that same Officer could not be indicted for such a crime as murder or other malfeasance. Since the civil Officers, who remain unnamed by title, may be indicted, it is pretty fatuous to say the President, also mentioned and subsumed in the provision, cannot be indicted. This is a matter that needs to be revisited, and certainly more consideration should be given to the idea that the President, no matter his status, cannot be indicted for a crime. If anyone says the President must be impeached before he can be indicted, they have not read the full text of the provision allowing impeachment. In the most perverse of circumstances, as president could commit a indictable crime and not be prosecuted because the Congress chooses not to impeach for purely political reasons. We have now reached that point in our country's existence.
@jespah,
I believe a federal DA could indict him, even if he were to publicly state he pardoned himself. At that point, it would become a constitutional issue, and the Appeals Courts would weigh in if SCOTUS did not take the case immediately.
@PARIPASSU,
PARIPASSU wrote:In the most perverse of circumstances, as president could commit a indictable crime and not be prosecuted because the Congress chooses not to impeach for purely political reasons. We have now reached that point in our country's existence.
We're not there yet. But one day in the future when there is a Democratic president again, it will be useful to indict him for a crime and force him out of office.
My only concern is preventing this future Democratic president from pardoning himself.
Jespah mentioned that the 1970s Justice Department opined that a president cannot pardon himself. But since you are dismissing other opinions from the 1970s Justice Department, it wouldn't really be consistent to rely on their opinion on this.
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