Giuliani gets to the constitutional question on presidential indictments
- Thread starter UsualName
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The unsettled law makes it plenty complicated.
But the thing that complicates it further is the fact that the Justice Department's own internal legal opinion- which has been adopted as policy- is that a sitting president cannot be indicted. There is plenty of room for disagreement on that but that is what the department itself- and its policy binding on the department is. So if there is an attempt to indict Trump then it becomes another nightmare for Horowitz who likes to think that the department should be following its established policies rather than making things up as it goes along depending on who the candidate/president is. It will not be pretty to watch a doj attorney argue "we have a firmly established/documented rule/guiding opinion that says that a president cannot be indicted but we are making an exception for Trump." Yeh. Not good. Trump is trying out some arguments that are ugly but the doj/mueller are too.
And the thing that makes it complicated-er and complicated-er is the question of (even if one accepts the idea that he cannot be indicted-which is not clear) whether a president can be subject to "process" even if not indicted. In other words, if a president cannot be indicted (whether for constitutional or departmental reasons) does that also mean that he cannot be subjected to process that seeks to take him in that direction- subpoena, attempt to compel testimony through interrogatories and so on? Don't know but someone could sneeze and those issues would go from academic to real very quickly.
A bunch of pundits rise up and immediately cite Clinton and the Paula Jones case as confirmation that a president can be compelled to testify, can be subpoened, can be charged criminally and so on while he is sitting. But that doesnt really work as well as they think. First of all it was a subpoena for a civil case- not criminal. Second, he dropped his challenge to the subpoena and voluntarily appeared so there was no ruling on that. Third, he plead on the perjury charged rather than resist the process of criminal indictment, etc. So on and so forth.
Maybe Trump will actually shoot Comey which will give us a chance to get court rulings on some of this. That would be good way to test it.
How it looks should not be the standard by which a decision should be made in this matter. Trump has admitted he obstructed justice in his writing of that Don Jr memo. We are here.
Although it does look bad for the DOJ to defy or alter a standing internal memo to pursue an indictment against a sitting president it should not compel inaction nor should action be definitely pursued. It just is simply time to figure this out.
As to the process being a burden on the president to effectively carry out his duties, the congress and states saw fit to adopt the 25th amendment and there is room in there for seemless transition if the president should be incapable.
Clinton was almost indicted which shows how fast DOJ policy can change
This is an interesting constitutional question. On the one hand, the Constitution does not explicitly grant immunity from criminal process to the president. On the other, it does grant the president plenary power over the Executive Branch as well as unreviewable pardon power. It also provides an explicit method for removing a president deemed guilty of criminality.
The president can clearly direct the DOJ to drop or not pursue criminal charges against him. Any other result would leave him vulnerable to rogue prosecutors or unscrupulous Attorneys General. Similarly, there is no reason a sitting president cannot pardon himself. The pardon power contains no exclusion for self-pardons. The constitutional remedy in both cases is impeachment.
That leaves two other issues. One, can the president nevertheless be guilty of obstruction of justice, eg by killing a probe into his own conduct? And two, can state or local prosecutors bring criminal proceedings against the president?
I think the former question is a subset of the issue discussed above. The president has ultimate authority to decide whom is prosecuted, including himself, and it would be a violation of separation of powers for the courts to sit in judgment on that.
As for the latter question, it is a Pandora's box of bad policy. While we like to intone that no man is above the law, the issue is whether a local prosecutor can paralyze the federal government. That raises obvious issues of federalism. What if the president refuses to go along with a prosecution? Does a state have the right to arrest him? Does the president have authority to resist, using the full might of the federal government? Merely posing the questions demonstrates what a terrible idea such a prosecution would be. In any event, a prosecution would not be permanently blocked, only deferred until the president leaves office.
The president can clearly direct the DOJ to drop or not pursue criminal charges against him. Any other result would leave him vulnerable to rogue prosecutors or unscrupulous Attorneys General. Similarly, there is no reason a sitting president cannot pardon himself. The pardon power contains no exclusion for self-pardons. The constitutional remedy in both cases is impeachment.
That leaves two other issues. One, can the president nevertheless be guilty of obstruction of justice, eg by killing a probe into his own conduct? And two, can state or local prosecutors bring criminal proceedings against the president?
I think the former question is a subset of the issue discussed above. The president has ultimate authority to decide whom is prosecuted, including himself, and it would be a violation of separation of powers for the courts to sit in judgment on that.
As for the latter question, it is a Pandora's box of bad policy. While we like to intone that no man is above the law, the issue is whether a local prosecutor can paralyze the federal government. That raises obvious issues of federalism. What if the president refuses to go along with a prosecution? Does a state have the right to arrest him? Does the president have authority to resist, using the full might of the federal government? Merely posing the questions demonstrates what a terrible idea such a prosecution would be. In any event, a prosecution would not be permanently blocked, only deferred until the president leaves office.
I see. Not following the departmental policy of not indicting presidents is okay because it would just look bad, that's all. Heh. This is the reason why we have IG's to monitor the clown shows you support.
On the other hand, I can only repeat over and over. Go for the indictment. I am all for it. It will be hard on Trump but it will also suck Mueller on to a legal battlefield where he will either be slaughtered or die of old age watching it be overturned on appeal- and senators will have an automatic out by saying he either was acquitted or that we need to let the criminal trial play out before deciding on impeachment. Giddy up. Let's go. Mueller is a pussy and is very beatable in court, and as over-discussed, he may find out right off that he cannot even get an indictment because he is barred from going down that road.
What y'all are missing is that mueller is also going to be underscoring the fact that he is barred from seeking an indictment- THIS IS HIS FACE-SAVING OUT BECAUSE HE CANNOT MAKE THE BIG KILL. And this is his justification for doing a big dump of finding on to Congress for impeachment- all while pretending that if it had not been for the prohibition against indicting a president he would have prosecuted it and won. C'mon. Get with the program. This is muellers saving grace to keep him from getting into yet another big legal case where he will be slaughtered.
As always though, I offer up the reminder that he will try to knee-cap one of trumps kids just to get at trump. It's how pussies roll.
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We’re going to find out what’s what eventually. Mueller has Trump on obstruction. That’s a done deal. Whether or not DOJ (really Rosenstein) and Mueller “pull up” on Trump is another matter. It probably more depends on Trump at this point.
I’d say, if he refuses the interview the odds are better for indictment then if he complies. If he complies and pleads the fifth, a report will most likely be issued and he will be named an “unindicted coconspirator.”
Certainly does depend on Trump. Unless Trump walks into his perjury trap, Mueller cannot get a conviction on other charges.
And yes, Mueller will go down the road- as if I have not laid this out a couple times already just today- of dirtying Trump in some way as a compensation for not being able to do the big kill on the main charges. It's how pussies compensate for having a small penis.
Do we really need to get repetitive here. We got it. Your ilk are already beginning to migrate over from telling us how Mueller is going prosecute the shit out of Trump over to telling us how he is going to dirty him even if/especially if he cannot make the kill. Got it. Had it over a year ago. Welcome aboard.
It’s not a political thing as you make it out to be. This is real nasty stuff being investigated here and it has to do with the corruption of a pillar of our way of life - free and fair elections.
You see this as some made for tv bullshit but it’s bigger and more important than you think.
As for simplifying justice down to “big kills”, again, you watch too much tv. I have told you this before, these are serious people who will not be deterred by rhetoric.