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#311110 - 02/22/19 07:29 AM Yes, the President can be indicted
NW Ponderer Offline
Moderator
Carpal Tunnel

Registered: 09/09/11
Posts: 16741
I have been researching this issue for some time, and have come to the firm conclusion that the Office of Legal Counsel opinion asserting that the sitting President can't be indicted is pure hogwash. I'm not alone. None other than the esteemed Laurence Tribe agrees: Yes, the Constitution Allows Indictment of the President (Lawfare).

There are a number of issues that all point the same way, and significant historical precedents support the view. Indeed, the OLC memo appears to be the outlier. I don't want to post the extensive analysis, now, but I will provide my outline:

1) The Constitution doesn't prohibit it, and, in fact, implies it.
2) Standard legislative interpretation supports the conclusion, and doesn't refute it.
3) Legal precedent (on a variety of subjects) also supports the conclusion, as do previous DoJ determinations (Re: Nixon, Agnew, Clinton).
4) Constitutional history supports it (Federalist papers).
5) Logic supports it, and the contrary argument is illogical. The OLC memo relies on "prudential" considerations and not legal precedent, constitutional construction/interpretations, or history.

In addition, or relatedly, there is no legal support for immunity or "self-pardon". There used to be many more lawyers on the forums to debate/discuss issues like this, but I'm happy to get in an argument or expand on any of these points. I've thought about it a lot.

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#311114 - 02/22/19 02:58 PM Re: Yes, the President can be indicted [Re: NW Ponderer]
rporter314 Offline
old hand

Registered: 03/18/03
Posts: 6726
Loc: Highlands, Tx
The only one which really matters is #1.

The Founders made it clear the government they envisioned was a reaction to an absolutist authoritarian monarchy which elevated one man above others. The Founders did not believe one man is legally better or deserves considerations extralegal than any other. This despite the possibility they never considered a person would be so corrupt as to occupy the presidential office.

I have always thought (of course I already did not believe a president is above the law) the "prudential" argument is phony. It implicitly implies one man is above the law. If a single person is above the law, for even one second, then the Constitution is a worthless piece of paper. If anyone held the belief one person is above the law then one could easily extend the set of people based on any arbitrarily concocted criteria.

***

I did not look for the original Prof Tribe article but here is Prof Bobbit's response to which your citation addresses.


Can the President Be Indicted? A Response to Laurence Tribe.

***

As a caveat, my opinion (not having any legal expertise but a firm belief the Founders were creating a government which leveled the legal playing field for all people) has long been no man is above the law, and doesn't depend on who is in office.
_________________________
ignorance is the enemy
without equality there is no liberty

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#311123 - 02/22/19 04:14 PM Re: Yes, the President can be indicted [Re: rporter314]
NW Ponderer Offline
Moderator
Carpal Tunnel

Registered: 09/09/11
Posts: 16741
Thanks for providing the Bobbitt link of the counter argument. Having read it, it is very weak tea indeed. Now, I recognize that it was intended to be superficial and not fully fleshed out, because it was merely a response, but, really boils down to the last sentence: "I just don’t agree with it." Not a particularly strong argument.

I don't fully agree with Tribe, either, BTW. I agree with his conclusion, but not his reasoning. My approach is more direct. "The Speech or Debate Clause" of the United States Constitution (Article I, Section 6, Clause 1) shows that the framers knew how to provide immunity (BTW, with exceptions). Article II, which governs the President (Executive) contains no such provision. Longstanding canons of legislative interpretation, known to the framers, give force to the argument that the President has no immunity from prosecution. Further, the impeachment clauses themselves anticipate a separate criminal process

Quote:
Article 1, Section 2, Clause 5

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article 1, Section 3, Clauses 6 and 7

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgement in Cases of Impreachment 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, Judgement and Punishment, according to Law.


The impeachment process does not address the order of actions (conviction, impeachment), merely that they are separate actions. Indeed, prior criminal conviction would expedite the impeachment process.

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#311144 - 02/22/19 09:36 PM Re: Yes, the President can be indicted [Re: NW Ponderer]
Greger Offline

Pooh-Bah

Registered: 11/24/06
Posts: 14966
Loc: Florida
Quote:
Yes, the President can be indicted


That's so two years ago...

I don't think there's any question in anyone's mind about whether Barack Obama could have been indicted.

But this is now, not then. Tyranny is not the same as democracy.
_________________________
"Be yourself; everyone else is already taken."— Oscar Wilde

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#311180 - 02/24/19 11:01 AM Re: Yes, the President can be indicted [Re: NW Ponderer]
pondering_it_all Offline
veteran

Registered: 02/27/06
Posts: 8549
Loc: North San Diego County
Quote:
the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.


I guess the justification for Presidential immunity would say that the clause does not mention "the Party NOT convicted". So he must not be subject to Indictment, Trial, Judgement and Punishment, according to Law. But that really jumps to a conclusion, seeing as how that Party is not mentioned. Absent any mention, I would assume the Party not convicted is subject to the same legal treatment as any other citizen. If they wanted special rights of immunity for the President, they would have included them.

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#311181 - 02/24/19 04:12 PM Re: Yes, the President can be indicted [Re: pondering_it_all]
rporter314 Offline
old hand

Registered: 03/18/03
Posts: 6726
Loc: Highlands, Tx
Quote:
If they wanted special rights of immunity for the President, they would have included them.

I think it is more than abundantly clear the Founders having lived under the arbitrary absolutism of a tyrannical monarch would believe no man is greater than any other i.e. no man is above the law. How conservatives would want to elevate one person by virtue of political office to an extralegal status of exemption from the law, even if only for the duration of tenancy, is beyond my comprehension. How people who claim they are originalists or constructivists would sanctify and make immutable the words of a document without benefit of understanding the nature of the words defies my imagination.

No where in the Constitution does it say anyone should not be or can not be indicted. No where in the Constitution does it imply anyone can be exempt from legal proceedings. To construct an argument which places one man above all others is tantamount to arguing the Constitution is a meaningless piece of paper meant to be flushed when unsuitable to ones political aspirations or party affiliations.

Of all the things one could say about the Constitution only one stands out, screaming from every mountaintop .... NO MAN IS ABOVE THE LAW!!!!!!!
_________________________
ignorance is the enemy
without equality there is no liberty

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#311189 - 02/24/19 06:01 PM Re: Yes, the President can be indicted [Re: rporter314]
Greger Offline

Pooh-Bah

Registered: 11/24/06
Posts: 14966
Loc: Florida
Quote:
How conservatives would want to elevate one person by virtue of political office to an extralegal status of exemption from the law, even if only for the duration of tenancy, is beyond my comprehension.

No it's not.
Have you talked to any lately? They want absolute power.
Liberals are, to them, a lower form of life. That they must share governance of their great nation with people who disagree with them, or even look a little different from them, or god forbid speak a different language, is more than they can bear.

Quote:
I think it is more than abundantly clear the Founders having lived under the arbitrary absolutism of a tyrannical monarch would believe no man is greater than any other i.e. no man is above the law.


Please, never forget, that the constitution was written by and for the bourgeoisie. It was a set of rules that a bunch of rich white guys set up for their new club. A lot of high minded blather that didn't include the women or the servants.

Rich white dudes could and did rule their private estates/plantations as undisputed monarchs. A man could be hung or a woman flogged on their word alone.

And some of them were slave owners FFS!

And that whole independence thing? Just a way to avoid paying taxes.

Along and along they realized they would have to levy taxes of their own...that's when WE started paying taxes to them...
_________________________
"Be yourself; everyone else is already taken."— Oscar Wilde

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#311196 - 02/24/19 10:10 PM Re: Yes, the President can be indicted [Re: Greger]
NW Ponderer Offline
Moderator
Carpal Tunnel

Registered: 09/09/11
Posts: 16741
I quite agree, Greger, that the framers of the Constitution were not saintly, or even close. They did, however, have high aspirations. The Constitution, in addition to being a dissertation on the form of government and rules therefore, also contained the seeds of a much more "liberating" form of government, which we have inherited.

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#311197 - 02/24/19 10:47 PM Re: Yes, the President can be indicted [Re: Greger]
pdx rick Offline
Member
Carpal Tunnel

Registered: 05/09/05
Posts: 41238
Loc: Puget Sound, WA
Originally Posted By: Greger
Have you talked to any lately? They want absolute power.
Liberals are, to them, a lower form of life. That they must share governance of their great nation with people who disagree with them, or even look a little different from them, or god forbid speak a different language, is more than they can bear.

Let us never forget that Conservatives are the minority in this country. Phuck those pissants! mad
_________________________
Contrarian, extraordinaire



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#311216 - 02/25/19 06:13 PM Re: Yes, the President can be indicted [Re: NW Ponderer]
NW Ponderer Offline
Moderator
Carpal Tunnel

Registered: 09/09/11
Posts: 16741
In interpreting statutes (and the Constitution is THE Statute), courts apply what are referred to as the Canons of Construction or Interpretation. One such list was promulgated by none other than Antonin Scalia: Canons of Construction, Scalia and Gardner. I mentioned one of those earlier, the "Negative-Implication Canon": The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius). In Article I, the framers explained the application of immunity to legislators, but did not do so with regard to the executive. Of course, Justice Scalia was as likely to ignore one of these canons as follow it, depending on which way he wanted the case to come out. (Examples too numerous to enumerate.)

Another longstanding legal distinctions between civil and criminal actions. They operate separately and one does not preclude the other. For example, someone may be charged in criminal court for homicide, and sued for wrongful death by the family. The framers expressly addressed this issue in the Impeachment clauses. Among the differences are the requirement for unanimity by a jury in a criminal case, and a majority in a civil action. Another is the standard of proof: "Beyond a reasonable doubt", in a criminal case, and "by a preponderance of the evidence" in most civil cases.

I raise these points (and I will raise others) because the arguments against presidential indictment as sophomoric and disingenuous.

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