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. — Article II, Section 4 of the US Constitution
There has been a lot of discussion in both the comments sections here, as well as by various knowledgable and in some cases unknowledgable commentators in the news media, about whether a sitting president, specifically the current President, can be indicted. A lot of this discussion – and I’m going to attempt to not create a straw man here – defaults to a sitting president cannot be indicted because the only way to remove a sitting president is through impeachment and that this is Department of Justice policy. The better or, perhaps, more accurate answer is that this is actually an unsettled question and we really do not know.
There is, without any doubt, a 1973 Department of Justice memo that issued the guidance that a sitting president could not be indicted. The Watergate Special Prosecutor’s team, however, prepared a legal brief arguing that this was not the case, but never actually fought the issue. Though they did include the argument in their brief regarding subpoenaing the Nixon’s White House tapes. My professional assessment as a political scientist and criminologist is they chose not to have that fight at that time because they didn’t have to as Congress had begun impeachment. During the Clinton administration, the Whitewater Independent Counsel’s team also prepared a legal brief challenging the 1973 guidelines and arguing that a sitting president could be indicted, but here too they never pushed the issue. My professional assessment is that it was for the same reason – the Republican majority Congress had made it clear that they would begin the impeachment process. In both cases, two different legal teams dealing with two different presidents from two different parties accused of engaging in very different types of improper conduct chose not to pick a fight that would have likely gone to the Supreme Court, risking a ruling that would enshrine the 1973 DOJ guidance as constitutional and limiting the power of future prosecutors dealing with future presidents’ bad acts. You can find all of these legal memos at this link (and I’ll upload the whole pdf at the bottom of the post).
That lawyers actually involved in either setting these guidelines or challenging them disagree is significant, but it doesn’t get us very far. Neil Katyal, former Acting Solicitor General of the United States, who wrote the most recent Department of Justice Office rules for a special prosecutor, had this to say about this issue (emphasis mine):
It is true that the special counsel regulations (which I drafted in 1999 for the Justice Department) generally require the special counsel to obey Justice Department policy. And it is also true that Justice Department policy is that a sitting president cannot be indicted. But the regulations contemplate that a special counsel could, in appropriate circumstances, depart from Justice Department policy.
The regulations had to be written that way. Those of us who created them could not foresee all the possible permutations of law and facts that would unfold in the years to come. If congressional leadership, for example, was in criminal cahoots with the president, no one would want the special counsel to be powerless to indict or to report information to the full Congress for impeachment.
Accordingly, the regulations permitted the special counsel to seek a departure from Justice Department policy, by going to the acting attorney general (in this case, Rod Rosenstein) and requesting it. The idea was that if responsibility for decision-making was vested in Justice Department leadership, decisions to protect the rule of law were more likely to be made. And as a safeguard against wrongdoing by Justice Department leadership, the regulations require transparency in the process: If the acting attorney general refuses a special counsel request, he must notify the majority and minority parties in Congress.
In this way, the regulations put a thumb on the scale in favor of having Mr. Mueller seek an indictment if he finds evidence of criminal wrongdoing by Mr. Trump. Unlike the Independent Counsel Act, a predecessor to the special counsel regulations that required the prosecutor to write a detailed final report to Congress, the regulations require only a substantive report when the acting attorney general overrules the special counsel. The acting attorney general is free to write one otherwise, but the only way Mr. Mueller can ensure such a report is written is to make a request that is overruled.
Thus the various pieces of the constitutional and regulatory scheme work together: If indictment is off the table, then impeachment must be on it; and (perhaps in a future setting) if impeachment is off the table because of nefarious congressional activity, then indictment must be on it. That is the genius of our system, and the only way to ensure we remain a government of laws which no one is above.
Katyal has, I think, identified the real issue here that has driven the Department of Justice guidance going back to 1973 on this issue: that indictment is off the table for actual criminal acts if Congress has deemed them to be high crimes and misdemeanors and begun impeachment. Since Congress had done that during both Watergate and as a result of the Whitewater Independent Counsel’s report, the prosecutors tasked with holding a sitting president accountable to the rule of law chose not to pick a fight they weren’t sure they would win, even if they believed they were right on both the constitutional and statutory legal issues.
Other than what is in the actual impeachment clause, the Constitution is actually silent on this issue. And the question of impeachment is always a political one. So the Founders and Framers are not silent on the political process for removing a president, which is impeachment. But impeachment is a political process for what any specific Congress decides is a political problem that equates to high crimes and misdemeanors, not a criminal process. And despite Hamilton’s Federalist paper on this topic, I find it very, very, very hard to believe that the Founders and Framers, who had been so concerned about the crimes committed by a sovereign that they revolted and then created a system of laws, not men, would create such a system with the intent that it placed the president above those laws.
We are, unfortunately, in uncharted territory. Largely because the Founders and Framers never believed that should a president commit significant crimes while in office, or commit them to obtain the presidency, that Congress would fail to do its constitutional duty, fail to deem these to be high crimes and misdemeanors, and impeach that president in the House and convict him in the Senate and thereby remove him from office. They did not make this explicit because they could not imagine they needed to. The Founders and the Framers could not and did not envision every problem that their fledgling nation would face and where they did not or could not, the Constitution itself, as a record of their guidance, is silent.* It could not be otherwise. But just because they were not explicit, because they did not think they needed to be, and, as a result, the Constitution really does not deal with actual criminal crimes committed by a president, as opposed to actions that include criminal crimes, that any given Congress decides are high crimes and misdemeanors, does not mean that the rule of law does not apply or any president is above the law.
Right now we have congressional majorities that by and large not only do not wish to deal with these issues, but are actively working to obscure them and direct attention away from them in an attempt to preserve their majorities and their power. To adapt my oft used phrase, the current Republican majorities in the House and the Senate are off the looking glass and through the map. The Founders and Framers did not provide guidance for what to do under these circumstances because they, themselves, could not envision these circumstances. If you had explained to them that a future Congress might fail to actually do its constitutional duties because of rank partisanship and the pursuit of power, they would have looked at you as if you were crazy. The idea itself was simply so far outside of their ken as to be incomprehensible. As a result we are in uncharted territory and anyone who tells you definitively that X will happen or Y won’t happen should be taken with an Adam sized grain of salt (that’s more like a salt boulder than a grain, but you get the idea).
My professional assessment is that Special Counsel Mueller is both an institutionalist and a honest broker when it comes to the pursuit of justice. That if he feels the pursuit of justice means that he must follow the existing Department of Justice guidance, then he will and if he feels that the pursuit of justice means that he needs to challenge them, then that is what he would do. In other words: I have no idea. And, to be honest, neither does anyone else that is not Special Counsel Mueller, members of his team, and possibly Deputy Attorney General Rosenstein. Special Counsel Mueller finds himself in that area that Neil Katyal described at the end of his op-ed about the rules he wrote for special counsels. A grey area where either impeachment must happen or indictments must happen in order to keep a president from being above the law or, perhaps, a law unto themselves.
* I’m not a lawyer, just a political scientist and criminologist by education, but this is one of the major reasons that I find the originalist argument of constitutional interpretation and law to be unconvincing. Moreover, President Jefferson put paid to this idea of originalism back in his letter to Samuel Kercheval in July 1816, which is also inscribed in really big letters on the southeast portico of the Jefferson Memorial in case Justices Alito, Gorsuch, and Thomas are having trouble finding his thoughts on this matter!
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.
The “the president can’t be above the law” arguments is a total straw man. Impeachment is the constitutional remedy. It’s hard to do because it’s supposed to be hard to do.
Our problem is the partisan faction The Federalist warned about, not presidential immunity.
Just keep telling folks that a Democrat is safe and can commit all kinds of crime while in office and let the Democratic party claim victory at that point.
That’s a great Jefferson quote I had not heard before. It is definitely way off the map due to the malfeasance of every single Republican senator and house member in failing to do anything more than furrow their brows and criticize the Democrats.
The lady who got on the Manafort jury by not exposing the fact that she was a MAGAt did make me feel a little more hopeful. She did her civic duty and looked at the evidence and voted guilty because she considered him guilty, even though she didn’t want him to be guilty. Too bad none of the elected Republicans can say the same.
A Ghost To Most
Let Mueller indict him, and then we’ll find out.
My take is that they’re more like guidelines than actual rules, and we are off the map where guidelines no longer apply.
Imagine a presidency so corrupt and so dysfunctional that no modern laws are in place to stop it and hold the criminals accountable.
Sigh. We don’t have to imagine it. But we do have to figure out what to do.
“Only the best people:”
Commenters to the thread say that “Lionel” used to be on Air America as a progressive, but apparently decided the money was better on the other side.
@A Ghost To Most:
Just have a waiting arrest warrant when stops being president. That will be fucking awesome. If he fails to regain the presidency he goes to jail. If that is not possible, we just start taking away all his properties and money. Make him a pauper as punishment instead.
IANAL or even anything close to an expert on…well…anything. But the Constitution does not say “removed … only on Impeachment for and Conviction on”. Also, it does not say that a President has to leave office if convicted for crimes by a court outside of office. Couldn’t a President be indicted and convicted but say he will not leave office until his term is up, at which time he would start serving any time to which he/she was sentenced? Of course, if convicted in a court of law outside of Congress, it would be extremely difficult for Congress not to go through the impeachment process.
@Bobby Thomson: You missed Adam’s point: impeachment is a political process to remove an office holder from office, not a procedure to hold him or her accountable to the law. As far a the warnings in The Federalist, partisanship emerged before the ink was dry on The Federalist.
A president has to be allowed for an indictment. If he is free of that burden then imagine having two years signing bills and EO’s, appointing Federal judges and SCOTUS – all that benefit the criminal president.
@Mary Green: Not the first to discover that.
Adam L Silverman
@Mary Green: He was one of my Dad’s criminology/criminal justice students as an undergraduate. I did not know he was involved with this. The last I heard of him he was pretty solid left of center. My Dad would occasionally have lunch with him before he (my Dad, not Lionel) died. He was an attorney in Tampa with a talk radio show that went syndicated and then jumped to Air America. Olbermann used to have him on Countdown.
Major Major Major Major
Not normal is the new normal.
Sam Nunberg is a very poor liar.
In theory there is nothing preventing a president from presidenting while behind bars. His/her presence in the White House is not a requirement for anything, the duties of office accompany the person.
Adam L Silverman
@Bobby Thomson: You’ve either split the argument hair too fine or you’ve missed my point. Yes, impeachment is the constitutional remedy for whatever the political process in Congress determines is a high crime and/or a misdemeanor. It is not a criminal law process, nor is it a criminal justice remedy. If the only remedy for a president that has committed criminal acts is impeachment, which is dependent on politics, then the president, while president, is always a prospective tyrant. Do you really want to argue that that is what Madison and Jefferson and Washington and Franklin and Hamilton, etc had in mind.
I think this is false. The Framers of the Constitution clearly could envision such rank partisanship that people would ignore the law. They saw that kind of partisanship- what they would describe as “faction”- as the greatest enemy of constitutional government. The problem is that the Constitution is ultimately just a bunch of words engrossed on velum. It requires people of good faith trying to live up to its principles to give it force. If enough of the people in the government want to undermine it, rather than support it, those words can’t stop them from doing so. The Framers did their best to set up the Constitution so that it would take a really wide ranging conspiracy to completely undermine the government, but they did that precisely because they knew that was where the danger was.
The Founders and Framers couldn’t even write a Constitution that kept the country together for more than a human lifespan, so I wouldn’t be surprised that there was other stuff they didn’t think of.
It’s a shame Jefferson couldn’t see that the institution of slavery was inhumane and needed to change.
@Bobby Thomson: No, impeachment is NOT the only Constitutional remedy. It is one remedy for a narrow set of infractions, some crimes, some potentially not crimes.
The Constitution also states that even if someone has already been impeached and convicted, that person can also be tried in a court of law for crimes in the normal manner. Thus these are not mutually exclusive remedies for wrongdoing.
And no, that Constitutional provision does NOT state and cannot mean that a president can only be brought to trial after being impeached and removed from office. That would be insane as policy for a host of reasons, including the fact that people would not know in advance whether a president was in fact going to be impeached and removed. What that provision means is that impeachment is not a criminal procedure and therefore doing both impeachment and criminal trial (whichever goes first) does not constitute double jeopardy.
So not only is there nothing in the Constitution stating explicitly that a person cannot be tried before being impeached – negative evidence of fairly high order of value strongly suggesting that the Framers assumed that one could do it – but there are also indications that they viewed criminal indictment to be unrelated to the narrower, political matter of impeachment.
Adam L Silverman
@Roger Moore: I think it goes beyond that. They understood faction/partisanship and the problems it would and was bringing. What they couldn’t envision was people in their places acting completely unethically.
Quaker in a Basement
Isn’t the reason for the current Justice Department policy that a criminal trial would be a damaging distraction from the duties of a president?
Not a problem, here.
Adam L Silverman
@Quaker in a Basement: That is part of it.
@Roger Moore: As I noted above, the Founders condemned factions until they joined them before the ink was dry on the Constitution.
@A Ghost To Most: Obligatory: https://youtu.be/jl0hMfqNQ-g
@Quaker in a Basement: Might cut into “Executive Time” a bit.
Adam L Silverman
@Ben Cisco: Well played!
The Constitution doesn’t say that you can’t indict a President. Nor does it say that you can indict a Senator or a Cobbler.
Lacking either an express statement against indicting a President, or a list of those who can be indicted that does not include the President, I would assume the President is not special.
He cannot be *removed* from office by the criminal justice system, but that only means he either cannot be imprisoned while in office, or that he he would have to do his Presidenting from prison.
One would expect that a President who is convicted of major crimes would be impeached (and that the impeachment might happen while he is being prosecuted), but I can also imagine cases where the President might be convicted of something that congress feels is trivial — trespass, a lapse in firearms registration, conspiring with a foreigner government to undermine our democracy…
What I am just as interested in as taking down Trump, is if the Democrats retake the House and/or the Senate, they start digging into all the shady shit Trump’s Cabinet has been doing.
I know Trump sucks all the air out of the room, but his Cabinet is probably stealing shit for their benefactors, while everyone’s looking at Trump.
And I want people to start asking, “Why wasn’t the Republican Congress investigating this epic level of corruption by the Cabinet?”, hopefully making the association that Republicans are corrupt.
” It’s a shame Jefferson couldn’t see that the institution of slavery was inhumane and needed to change. ”
Jefferson actually could and did, but he couldn’t reconcile himself to measures that would work in the real world. So, he came up with insane ideas like forcing all states to recognize slavery, so it would spread to areas where it was not economically viable, and that would somehow, after ????, make it go away gradually. I think it drove him half insane on the topic in his later years.
He once wrote that if enslaved races were the equal of their masters, then they had every right to slit their masters’ throats. He probably thought about that too much after he made one of his slaves his long term mistress.
Mike in NC
OT: today’s Washington Post noted the passing of Robin Leach, age 76, former host of reality TV show “Lifestyles of the Rich and Famous” back in the 1980s-90s. He was pretty much a toady who loved to celebrate the 1%ers flaunting their wealth and bad taste. It was where most of us first learned to loathe Donald Trump. Many commenters are hoping that Robin burns in Hell for all eternity for promoting the Orange Ogre.
@jl: Meanwhile Alexander Hamilton just said that contracts that enforced slavery were obviously invalid, so just free them all, and let the masters deal with the mess they themselves made.
Adam L Silverman
@gene108: Correct. What is needed is oversight and investigation coupled with Congress formally, including through legislation, reclaiming the power it has both ceded to the executive branch and that the executive branch has just taken over the decades. They also will need to legislate a lot of what are now broken norms, customs, and traditions into law with clear penalties if a president or presidential appointee or even member of Congress engages in them.
@Corner Stone: And in fact one of the crimes that needed to be subject to impeachment that the Framers were most explicit about was bribery of Electors in the Electoral College to gain the presidency. They realized that elections were a weak point where an egregious individual – especially a rich and unscrupulous one – could easily manipulate the entire elaborate structure of government.
So they would not have wanted a president who gained office through bribery and manipulation of the election process (or corruption like Trump’s) to remain in office just because he has corrupted/manipulated enough members of Congress that he is effectively immune to impeachment. There has to be a remedy available through the lawcourts to put a stop to such a travesty.
@cain: I don’t understand what you’re saying here. Can you explain it to me?
From Jefferson’s rough draft of the Declaration of Independence:
The Continental Congress in Philadelphia struck out the entire paragraph.
Now that we know that Allen Weisselberg was given complete immunity, not conditional to just Cohen, we might find out sooner rather than later the question on whether a sitting president can be indicted.
Adam L Silverman
@NotMax: Yes, in fact in 1920 Eugene Debs was permitted to run for president from jail (where Wilson had dumped him when Debs spoke out against the imposition of the draft during WWI).
@Adam L Silverman: Except as Mickey Edwards (retired R congress critter from OK) pointed out a day or two ago being impeached is a massive distraction from the duties of the President and the Constitution allows for that so why not allow the President to be subpoenaed for testimony or subject to indictment.
Mike in NC
@Quaker in a Basement: Duties of the president: golf, MAGA rallies, two scoops, Hannity, executive time, more golf, lie constantly, and praise Putin. Did I miss anything?
@NotMax: I came here to see how you were doing, so how are you doing? I saw some scary video on the weather channel but they were on the big island. I hope you stay safe and dry.
@Adam L Silverman: Maybe, but we don’t know what level of consent Sally Hemmings had in the deal. We might know more, but apparently Jefferson, or some family member destroyed the pages of his diary that apparently covered his least negotiations with Sally Hemmings and her brother just before they left France for the US, and were still free to make up their own minds what to do.
Adam L Silverman
@Marcopolo: Saw that and agree with his commentary.
@Calouste: You mean that the Founding Fathers had feet of clay and that the document they wrote is not infallible? Blasphemy!
@jl: least is supposed to the last. Anyway, interesting that Jefferson had to deal with the Hemmings siblings as nominally legal equal in France, and had to persuade them to return to their status as slaves in the US. I think out of mix of very selfish and altruistic (he thought the French revolution might make things very ugly there) motives.
Adam L Silverman
@jl: I didn’t edit that to say she wasn’t also his slave, but his sister in law and slave and that she was really more of a common law wife.
@Adam L Silverman:
Again, I think they could very easily imagine people in their position acting completely unethically. They may have been idealists in the sense they wanted to try doing better, but they had seen and studied enough history, and were cynical enough about human nature, to be skeptical about their chances of success. And they definitely knew that the Constitution is worthless without people willing to give force to its principles. There’s nothing you can do, no level of eloquence or cleverness in designing a structure, that will protect a government from being corrupted when people interested in corrupting it take complete power. They didn’t leave any words of advice in the Constitution about what to do if the government was taken over by people who didn’t want to follow it, because those words would have no power over people who were choosing to ignore the rest of the document.
@Adam L Silverman: Much obliged.
As I was saying in the thread below, IANAL, but as someone who’s read quite a lot of British history, it seems insane to claim that the US Constitution gave an immunity from prosecution to our president that the “tyrant” king they were trying to escape did not himself have. The men who wrote the Constitution knew quite well what had happened to Charles I and why.
These muthaphuckas ?
Ezra Klein (@ezraklein) Tweeted:
The federal government markets prison labor to businesses as the “best-kept secret”: https://t.co/YntjemWLi1 https://twitter.com/ezraklein/status/1033077561373483008?s=17
This post is the reason BLUF is used. I’m on my mobile and it just scrolling, like the crawl from Star Wars!
Hold on, the constitution says ONLY that a President can’t be REMOVED from his elected position by any means except by both impeachment and then Senate conviction. It most CERTAINLY does not say that a sitting president can’t be indited! nor, really, does it prohibit a sitting president from being tried and even convicted. Hell, technically, such a person could also even be put in prison, just not removed from the “title” of being the President. In the true sense,, arresting them and placing them in jail is not removing them from the elected office (except in the literal sense.) Sorry, but the intent of that clause was their position as elected president can’t be undone by criminal courts – not that they are in any manner or method above the law. I’d concede that putting them in prison should be over the line (and that the intent of that clause means that but not a trial or indictment) but a trial and even a convection isn’t necessary out of the written meaning – for instance, only after they leave office would they then be put in jail. No matter, that clause absolutely does not (read it!) in any way prohibit indictment, trial and even a conviction – no, way, no how.
Adam L Silverman
@rikyrah: That customer service person you gave your name, address, credit card #, and social security number to last week is doing 5 to 15.
I’m not kidding.
Sally Hemmings was about 15 years old at the time, so I feel like that answers the question even if you leave aside all of the other coercive factors at work.
I think pretty clear that Framers foresaw Trump style behavior, since there has been Trump style behavior all throughout history, when then drafted the Constitution. But commenters are fight that they didn’t foresee a corrupt Congress that would acquiesce in executive crime so readily.
I think it’s pretty clear that by Framer standards, Trump is very impeachable and convictable and removable. It’s not like asking what George Washington for James Wilson would think about federal auctions of radio frequencies, and pretending to know.
Inside the Founding Fathers’ Debate Over What Constituted an Impeachable Offense
If not for three sparring Virginia delegates, Congress’s power to remove a president would be even more limited than it already is
Smithsonian Magazine Oct 2, 2017
” When Mason argued that “the great powers of Europe, as France and Great Britain,” might corrupt the president, Randolph replied that it would be an impeachable offense for the president to violate the Constitution’s emoluments clause by taking payments from a foreign power. Randolph was establishing that violations of the Constitution would constitute high crimes and misdemeanors – and so would betraying the U.S. to a foreign government.
And in an argument with Madison, Mason warned that a president could use the pardon power to stop an inquiry into possible crimes in his own administration. “He may frequently pardon crimes which were advised by himself,” Mason argued. “If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?”
Impeachment, Madison responded, could impose the necessary check to a president’s abuse of the pardon power. “If the President be connected, in any suspicious manner, with any person,” Madison stated, “and there be grounds to believe he will shelter him, the House of Representatives can impeach him.” ”
Still in a holding pattern here. Storm is currently category 2 and movement has slowed so that closest approach to Maui, formerly forecast at ~8 p.m. Friday, is now estimated to occur ~2 a.m. Saturday. The unknown is still how far north it will travel before jogging to the west.
Just this minute looked again and the center of storm is about 150 miles southwest of where I sit and still trundling northward. Winds from the southwest beyond the storm are pushing most of the bands of rain to the northeast (over the islands).
@Adam L Silverman:
They knew that there were scoundrels. But they thought that there were more men of honor, and that a critical mass would always love their country more than they loved fame or naked power or the temptations of corruption.
What we are seeing with Trump is that all of the checks and balances in the world don’t matter if no one is willing to apply them.
@Mnemosyne: Thanks, I forgot about her age.
@rikyrah: obviously someone took the wrong lessons from watching the Shawshank Redemption
Quaker in a Basement
@Mike in NC: I think you got everything except late night Twitter raging. Or maybe you included that in Executive Time.
To be fair (sort of) to Jefferson, it was not an unusual age at which girls would marry or embark on their first serious (sexual) relationship at the time, but it definitely muddles the issue of how meaningful her consent to remain in slavery was.
The Midnight Lurker
This is clearly a massive criminal conspiracy. Just removing Trump will not solve the problem. Pence is probably just as rotten, just not as overtly. Throw in McConnell, Graham, Grassley– hell, at this point it’s probably easier to list the republicans that aren’t guilty of high crimes and/or trying to obstruct justice.
My gut feeling is that Mueller has uncovered a lot beyond Trump and his cronies. That’s why Graham and Grassley are openly talking about getting rid of Rosenstein. They want to stop Mueller before he gets to them.
They are cornered rats. And they know that if they lose power in November their gooses are cooked. They will do anything at this point. What do they have to lose?
God knows what these evil people have planned for November.
CHECK YOUR VOTER REGISTRATION! VOTE EARLY IF POSSIBLE!
Outside the topic under discussion but for some reason this popped into my head and I searched for it. Sure enough, it wasn’t a scary hallucination at all. Trump & pizza https://m.youtube.com/watch?v=pvp-XMqnh-g
Well said. Thanks for the detailed and convincing writeup.
One of the topics yesterday on “1A” was this very subject. https://the1a.org/shows/2018-08-23/executive-power Rosen made some good points – namely that The Founders were very much horrified by bribery and the like in elections because it thwarted the will of the people. So, he argued, they would have no trouble at all throwing the book at Donnie and his Minions over the Cohen payments and all the rest.
I’m not a lawyer, either, but it seems to me that the language of the Constitution doesn’t preclude indictment. An indictment, after all, is “just” a statement of charges. It doesn’t mean he would immediately be dragged to the William G. Truesdale Adult Detention Center. People can argue whether he should lose his passport and wear an ankle monitor while his lawyers duke it out…
Relatedly, Popehat retweeted:
Thing seem to be accelerating for
@Mnemosyne: It was Sally’s brother who took a lot of persuading. He wanted to stay in France and be a French chef. I think he ran away and did that for an extended period while they were in France. I think he was of age at the time but not sure. Would be very interesting to read about those last days of persuading and negotiations with both of them, though would be from Jefferson’s self-interested viewpoint.
Anyway, Jefferson had to live with the fact that, by his own reasoning, that is mistress and his personal chef had the right to slit his throat for the rest of his life and it drove him crazy on the topic of slavery.
@Adam L Silverman:
This is reading modern understanding into the relationship. You really have to strike “law” from your description here. The law did not recognize any legal relationship between Sally Hemings and Jefferson. Southerners were strange about this. There is not a scrap of a letter or diary in which Jefferson, his wife, or his children ever acknowledged Hemings connection to their family.
Similarly, there was never any acknowledgement of the possibility of a common law relationship between Jefferson and Hemings.
Also, while Jefferson let some of the children he had with Sally slip away without pursuit, he never acknowledged that he was the father, as a common law husband would have done.
We need to think about 1/21/21 institutional safeguards both amendsme ts and laws
indeed. tho those who point out that impeachment was the sole method the framers intended for holding a president accountable under the law, i’d point out that the constitution doesn’t reserve impeachment for the president alone; any civil officer of the united states can be impeached and removed from office for the same violations. hell, see a few weeks back when some teabagging assholes in the house were trying to impeach rosenstein.
i doubt that the framers intended for any and all civil officers of the US to also be immune from criminal prosecution while in office. IIRC the court of appeals for the DC circuit made the same point during watergate.
Would be interesting to see what Framers’ views of early impeachments were. We have William Blount for conspiracy with foreign powers, for for Pickering and Chase. for BS judicial rulings for SCOTUS.
MIGA! Let’s Make Impeachment Great Again!
Impeachment in the United States
YetAnotherJay formerly (Jay S)
@Adam L Silverman: Oversight sounds good, but seems to have failed multiple times in my recollection. The Watergate investigation was one of the few that seemed to help move the country, but still the special prosecutor drove much of it. Iran/Contra exposed a lot but blew up much of the evidence to get to a clean resolution. Perhaps you can remind me of things that oversight worked to clean up? I want to believe.
@Mike in NC: I’ll just leave this here…
@Mike in NC: Rubber-stamping judicial appointments for the Federalist Society and appointing minions who will steal anything that is not nailed down.
I suspect the Founders were actually being quite stupid in this regard. They didn’t think there would even be political parties in their government, that strong partisanship would somehow not emerge from that system. That turned out to be wrong within minutes of the Constitution being ratified, through the actions of those selfsame Founders, and, among other things, the 1800 Presidential election in which Jefferson himself was (just barely) elected already proved that a significant part of the Constitution had been completely broken by partisan effects. But their whole separation-of-powers scheme relied on party loyalty not being stronger than the rivalry between the branches.
That’s because it would be redundant. The Declaration of Independence explicitly makes this complaint about the King as one of the reasons for declaring independence:
Does anybody really believe our founders would make this complaint, then turn around and say that the head of the new country would not be bound by laws? IMHO, impeachment was not intended to be the only way to remove the president; it was intended to be an additional way that had to be included because it is an extrajudicial process. One of the reasons an extrajudicial process would be needed is because some crimes may involve classified information that could not be presented to jurors who hold no security clearance.
…and BellQ’s and my b-day.
Ironically, for years white supremacists used that lack of evidence to claim that the relationship never happened. However, it was very common in slave states (especially Virginia) for it to be verboten to actually say what everyone knew was going on as far as who was related to whom and who was involved with whom. And, as someone said above, we can’t discount the possibility that letters or diaries could have been destroyed later to muddy the trail.
@?BillinGlendaleCA: *BellaQ’s. Bring back the edit function!
We need to keep our eyes on 11/06/18, or 1/21/21 won’t make much difference.
@Matt McIrvin: Hamilton contemplated in Federalist 65 that the senate might not convict because they’re too cozy with the prez, then said, “Naaaah, could never happen.”
@?BillinGlendaleCA: Yeah, where is Bella Q? Have not seen her ‘nym for too long.
Mike in DC
As a practical matter, if it looked like the Senate was inclined to block removal no matter what, filing an actual criminal indictment for dozens of felony charges would likely kill that strategy. It would be like put a political gun to their heads. “Do you want to go on record protecting this guy from prosecution for the next year and a half? Even at the possible cost of your own jobs?”
A president running for reelection with the specter of multiple indictments over their head would be the lamest duck ever .
@Mike in NC: Leach was an absol¨te waste of flesh, blood and skin. Toady is a very mild term for him. Anus licking scumbag is more appropriate.
Would it be Constitutional to execute a sitting President if they were found guilty of a capital offence in court? It would forcibly remove them from office since they’d be dead but without resignation or impeachment which are supposedly the only other options.
Asking for a friend.
Oh, and there is a precedent for being President while serving a prison sentence — “The President in particular is very much a figurehead — he wields no real power whatsoever. He is apparently chosen by the government, but the qualities he is required to display are not those of leadership but those of finely judged outrage. For this reason the President is always a controversial choice, always an infuriating but fascinating character. His job is not to wield power but to draw attention away from it. On those criteria Zaphod Beeblebrox is one of the most successful Presidents the Galaxy has ever had — he has already spent two of his ten presidential years in prison for fraud.”
@Marcopolo: pretty sure if you’re spending your time watching TV, rage tweeting, and going to rallies you’ve decided that the “other presidenting stuff” is somebody else’s job. He shouldn’t have any problem sitting for a grand jury…..other than the non-stop lying.
@rikyrah: assholes love their slavery / indentured servitude.
J R in WV
As long as there is evil in the hearts of men, there will be people willing to enslave others.
We just have to fight for freedom all the time. Forever!
I wouldn’t go quite that far, but there was something icky about the way his TV show was all about gloating on behalf of the 1% over how rich they were and grandly they lived.
J R in WV
I think is is obvious that if the original writers of the Constitution intended sitting presidents to be immune from criminal prosecution, they would have said so. Impeachment is an added threat to corrupt officers of the government, not a replacement for the normal course of criminal prosecution.
I do think the founding fathers would have little respect for an individual capable of committing criminal acts or corruption such as we have found today. How long would even current Republican members of congress hold on to Trump if he was indicted on dozens of corruption charges (remember, most of the special prosecutor’s team are themselves Republicans!)? Hopefully before the next election!
A careful reading of the 2000 OLC opinion should make it clear to anyone who is not being deliberately obtuse that the memo’s analysis and conclusion depend critically on the practical availability of impeachment, conviction, and removal from office as an alternative to the criminal process. See 24 Op. OLC 222, 257 (2000) (“A sitting President who engages in criminal behavior falling into the category of ‘high crimes and misdemeanors’ is always subject to removal from office upon impeachment by the House and conviction by the Senate …”) (emphasis added).
Well, what if he’s not so subject?
The Special Counsel regulations provide the Special Counsel with “full power … to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 C.F.R. § 600.6. Further, the regulations clearly contemplate that in “extraordinary circumstances” and after consultation with the Attorney General, the Special Counsel can depart from “established practices, policies and procedures of the Department.” 28 C.F.R. § 600.7.
Bottom line: if Mueller can convince Rosenstein that extraordinary circumstances justify departing from the policy set forth in the 2000 OLC memorandum, he can indict Trump’s blubbery white ass.
Spinoza Is My Co-Pilot
Thanks for this post, Adam, it really is a timely and very important topic. Your thoughts are cogent, even-handed, and well-informed, and though we disagree (just slightly, I think) it’s entirely possible that I am the one who’s wrong by leaning harder on the “immune to prosecution” side.
Instead of fully re-hashing my comments on the previous thread (too damn long, anyway) I’ll try to put this as succinctly (for me) as I can for those in the “this can’t be, the president is not above the law!” camp (I totally understand that sentiment):
The official DoJ legal opinion/guideline on this is stated unambiguously in that legal opinion issued in 2000 by Assistant Attorney General Randolph Moss, Office of Legal Counsel, that Adam linked to. The concluding sentence: “Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution”.
Is that view immutable, the final, definitive answer to the question? No, it’s not. The question is in fact an unsettled one (as Adam put it), which Asst AG Moss admitted in the sentence just before the conclusion: “No court has addressed this question directly…”. But it is the current, prevailing legal opinion, an opinion that Moss (and many others) didn’t just pull out of their asses because they believe the president is really an “above the law” God-Emperor or something. It isn’t some rightwing meme cooked up by Trump supporters, but a significant and weighty legal opinion based on well-researched and lengthy analysis from quite a while back that presently obtains.
Adam’s right about the current crisis and this important, unresolved constitutional question — we just don’t know for sure. Maybe Trump’s egregiousness (far greater than Nixon ever dreamed) will break the prevailing view about immunity, and indictments will come his way. I just don’t see THIS DoJ doing that, nor Trump and his supporters going along with it if they tried — he and they would defy (I believe) and it would be the greatest constitutional crisis since the Civil War. The SCOTUS would be required to resolve the question, once and for all, and does anyone here think THIS court would rule against Trump?
That’s why I believe indictment and criminal prosecution of Trump wouldn’t even be attempted, almost no matter what.
So yeah, not actually succinct. Apologies.
@JPL: Ness turned Caoone’s accountant. Mueller turned Trump’s money guy. Sweet.
@J R in WV:
I do not see this as a close question.
Not only Is the text silent, it is antithetical
to the philosophical underpinnings of this Republic.
@J R in WV:
I do not see this as a close question.
Not only is the text silent, the notion is antithetical to the philosophy underpinning the founding of this Republic.
@oldgold: I find it an odd debate. IIRC Aaron Burr was on the run from indictments for murder and dueling after he shot Alexander Hamilton while he was Vice President. The Framers were around, and I’ve never read that anyone thought that was unconstitutional. Not sure if Burr went all the way to Georgia in order to get back to DC because of the state indictments, but I think he had to stay out of New York and New Jersey.
A lot of constitutional scholars seem to spend their time making stuff up so that they have things to argue about. But why? There are plenty of real issues in constitutional law to argue about already.
While these lofty questions are debated, i do believe Mueller will grind away on multiple alternatives, such as RICOing Trump Org as a mob. Which could lead to asset seizure and collapse. Some things are worse than impeachment.
J R in WV
If King George III was not above the law, which was one of the major points of the Declaration of Independence, and if the Constitution doesn’t set the President above the law, which it does not…
Then the law applies to the president just like it applies to you and me. No one is above the law in this country, no matter how big the pile of money they stand on.
I agree that the special prosecutor should continue to grind away at illegal conspirators and their organizations. RICO the Trump Organization without even talking about president Trump. If he doesn’t want to talk to the prosecutor, OK, just go on and confiscate all those properties, indict the kids, take everything.
@Roger Moore: Also, the constitution is the result of compromise, not the perfect encapsulation of any. single. founders. ideals.
Much like any other consensus document/art/etc.
Adam L Silverman
@Spinoza Is My Co-Pilot: Just got back in – you are quite welcome.
@chopper: Yes, that’s another obvious point why the Constitution can’t be read as prohibiting indictment before/without impeachment. It amazes me people with legal training could somehow manage to overlook the absence of any provisions specifically privileging a president as opposed to other public officials.
No, you both missed the point. Impeachment is both a political process and a constitutional remedy for presidential malfeasance. Because it is an available remedy, saying presidential immunity makes the president above the law is intellectually dishonest.
Adam L Silverman
@Bobby Thomson: I’m going to try this one more time, though I’m pretty sure it isn’t going to make any difference. I am not arguing that you are wrong that the only way to remove a sitting president from office is through impeachment in the House followed by conviction, thereby forcing removal, in the Senate. I am arguing that the Constitution is, itself, silent in regard to whether a sitting president can be indicted, let alone tried and convicted, while in office. Not removed. There is no argument from me that the only removal option is impeachment in the House followed by conviction, thereby forcing removal, in the Senate. This, however, is a political process, not a criminal one. And despite what the Founders and Framers may have thought constituted a high crime and/or misdemeanor, which included bribery and violations of the emoluments clause and failure to ensure that the laws are faithfully carried out, the determination of what is a high crime and/or a misdemeanor and whether to impeach in the House and convict in the Senate are political determinations. They are not criminal ones. Even if that wasn’t what the Founders and Framers envisioned, which is itself unclear. The process of impeachment doesn’t conform to the evidentiary rules necessary to bring criminal charges, nor to convict in a court of law. Nor is it supposed to. The process may have the trappings of a court of law, but neither the impeachment proceedings in the House, nor the trial and conviction proceedings in the Senate are a court of law. They are, at best, the political equivalents to a grand jury and a trial court, not an actual grand jury and trial court.
What you have been repeatedly objecting to is not something I’m arguing. I’m not arguing that you’re wrong about the only way to remove a sitting president. I’m in complete agreement with you about that. All this post attempted to do was address the discussion that had been going on in the comments here, let alone other places like TV news, about whether a sitting president could be indicted. And in that case the only thing that says one can’t is a policy guidance memo from 1973. A memo that generates three different responses by constitutional scholars – both lawyers and political scientists, and a variety of legal commentators, including a whole bunch of former prosecutors. These response are 1) you can’t, which is where you’re at, 2) you can, which usually comes with a variety of caveats like Katyal’s, or those that the Watergate and Whitewater prosecutors made in their memos, that I quoted in the post, and 3) you might be able to or you might not, it is really uncharted territory, but you can’t unequivocally say either way. I’m both professionally and personally straddling 2 and 3. I think it is technically possible, so that’s response #2, but I also know it is a grey area and far from settled, except for a 45 year old memo, unless or until the Federal courts and the Supreme Court weigh in. And let’s be honest, the Supreme Court has the final say, and we have to live with it (or we’re supposed to unless one is pro-life or a 2nd Amendment absolutist or against all campaign finance reform or opposed to allowing homosexuals to marry, etc), even if they get it wrong, which does happen.
I also, as I’ve written before and wrote up top, fully expect that Mueller will follow the extant DOJ policy guidance because he’s an institutionalist. But that I would also not be surprised if he decides the institutional approach has been failed because of the behavior of the GOP majorities in Congress, that he’ll follow the rules as written and ask for an exception to policy as Katyal, who wrote those rules, described in the quote I cited in the post. But this too is not what you’ve repeatedly argued here. This isn’t about removing a sitting president from office, this is the question of indicting, and potentially prosecuting a sitting president, because the political remedies to hold him accountable have failed, or as what seems to be happening in this case, been purposedly failed.