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Can a sitting President be indicted? (1 Viewer)

timschochet

timschochet

Footballguy
Pretty simple question but a complicated answer.  The Department of Justice says no.  Lanny Davis, Michael Cohen's attorney, said this morning that they're wrong, and that the New York attorney general can do it if they want.

What are your thoughts on this?

 
Sinn Fein said:
You are asking a nonsensical question.

Can a president be indicted? Yes.

Will the indictment be quashed? Maybe.

Will Trump be indicted while president?  No.
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This is pretty much the beginning and end of the thread.  We all know the GOP isn't going along with indictments and/or impeachment even if it were possible.  Just wait until he's out of office and throw him in jail.  He's proven himself basically incompetent as a legislator and/or negotiator, so he's pretty much lame duck at this point.

 
The Commish said:
This is pretty much the beginning and end of the thread.  We all know the GOP isn't going along with indictments and/or impeachment even if it were possible.  Just wait until he's out of office and throw him in jail.  He's proven himself basically incompetent as a legislator and/or negotiator, so he's pretty much lame duck at this point.
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This. He's never getting impeached. There could be pee tapes and audio/visual evidence of Trump and Putin planning to help him get elected in return for a promise of sanction relief and the GOP senators still wouldn't have the spine or integrity to vote to impeach.  Let him get voted out in 2020 and then lock him up for life. If he was some crooked little-known private citizen, he'd have been indicted and thrown in jail long ago. There's a mile long list of crimes he's committed. And that's not counting anything they happen to find with collusion.

 
It would be nice to impeach and have the Pubbies in the Senate do the right thing. But laying the case out into the public eye, ensuring that the electorate knows the full scope of Don's transgressions and educating it to know that voting him out puts him in criminal court where he belongs as soon as he's defeated is a winning strategy, too. The public is only now beginning to know how bad it has been with this guy. Dems need to play up the fact that re-election = escaping justice. Even the MAGAhats won't have a moral leg to stand to on when they, inevitably, vote for him despite it all.

 
roadkill1292 said:
It would be nice to impeach and have the Pubbies in the Senate do the right thing. But laying the case out into the public eye, ensuring that the electorate knows the full scope of Don's transgressions and educating it to know that voting him out puts him in criminal court where he belongs as soon as he's defeated is a winning strategy, too. The public is only now beginning to know how bad it has been with this guy. Dems need to play up the fact that re-election = escaping justice. Even the MAGAhats won't have a moral leg to stand to on when they, inevitably, vote for him despite it all.
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:lmao:  Tell the truth, did you type this out with a straight face?

 
Biff84 said:
I believe he said that a President could never be indicted because the secret service would stop them. He may have even said that the secret service would kill anyone who tried, can’t remember.
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:Lol:  no you obviously can't remember.  

 
The answer is "Yes" but that is only if Congress does not do its duty to rightfully impeach based on the evidence presented.

Meaning, if Congress was somehow corrupt, or allowing the President to rule unconditionally, there has to be another check in place. Thus, the law/courts. Will the indictment ever get to this point? It shouldn't but then again, I don't think it was ever truly thought that Congress would not do its duty. McConnell and the Senate appear to be willing to not do their duty so it has been proven, sadly, that Congress can be corrupt.

 
FTR- my question was meant to be theoretical. I don’t believe this President or any President will ever be indicted for a crime. But if one was, would it be legal? 

And would it make any difference whether or not the crime was committed while in office, or prior to taking office? 

 
If he can't be arrested why not just kill your opposition then change the constitution getting rid of terms limits.

Or you could be more subtle and rig elections gaining your party absolute power then change the constitution.

 
timschochet said:
FTR- my question was meant to be theoretical. I don’t believe this President or any President will ever be indicted for a crime. But if one was, would it be legal? 

And would it make any difference whether or not the crime was committed while in office, or prior to taking office? 
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Theoretically - it was a poor question for a discussion board.

Its not a question that anyone here - including all the great legal minds - could answer.  There are lots of positions that could be supported on either side of the argument - but no answers.

Its a question that can only be answered by a majority of 8 great legal minds and 1 boozehound in Washington DC.

 
We already have election meddling.  A senate in the bag for the executive.  As well as a packed court.

All of this is just as crazy.

 
Sinn Fein said:
Theoretically - it was a poor question for a discussion board.

Its not a question that anyone here - including all the great legal minds - could answer.  There are lots of positions that could be supported on either side of the argument - but no answers.

Its a question that can only be answered by a majority of 8 great legal minds and 1 boozehound in Washington DC.
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I would think it’s the perfect question for a discussion board. It’s interesting and people have differing opinions. Why not? 

 
Daywalker said:
  A senate in the bag for the executive. .
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Let’s discuss this for a moment. 

I think it’s unlikely that senators who are the same party as a President are ever going to vote to remove that President from office, regardless of the circumstances. Now I know that in 1974 Goldwater and Howard Baker warned Nixon that if he didn’t resign he would be impeached, but that was never proven: many historians believe that if Nixon had refused to go, in the end he would not have been removed. I agree with this, though we’ll never know. 

My own theory is that impeachment was written into the Constitution as a bluff and a deterrent. I don’t think the Founders ever thought it would actually happen; they wanted to have something in there that would make Presidents refrain from really bad behavior. 

 
Another question: isn’t the President also the commander of the military? Would it be proper, if he commits a crime, to court martial him? 

 
timschochet said:
Let’s discuss this for a moment. 

I think it’s unlikely that senators who are the same party as a President are ever going to vote to remove that President from office, regardless of the circumstances. Now I know that in 1974 Goldwater and Howard Baker warned Nixon that if he didn’t resign he would be impeached, but that was never proven: many historians believe that if Nixon had refused to go, in the end he would not have been removed. I agree with this, though we’ll never know. 

My own theory is that impeachment was written into the Constitution as a bluff and a deterrent. I don’t think the Founders ever thought it would actually happen; they wanted to have something in there that would make Presidents refrain from really bad behavior. 
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If so then it sums up what kind of sham this current set-up is then. 

 
SaintsInDome2006 said:
Oh the NY AG. Yeah they can indict the president.
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Its a trick question.

An AG can indict a president - but the real question is whether a court would quash the indictment by virtue of the position of the president.

That is an open question - subject to much legal debate, and which can only be answered by the Supreme Court.

 
Ilov80s said:
If so then it sums up what kind of sham this current set-up is then. 
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It’s a flaw of the two party system for sure. Getting 67 senators to agree to anything that is the least bit controversial is nearly impossible in our political system. 

For the same reason, I don’t think we will have any more constitutional amendments. It would be unwise of me to say “ever” but the odds are certainly heavily against it. 

 
Sinn Fein said:
That is an open question - subject to much legal debate, and which can only be answered by the Supreme Court.
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Many legal questions are. But let me change the question slightly so that you can offer an opinion: 

Should a state or federal attorney general be able to indict an sitting President? What say you? 

 
Sinn Fein said:
68-page article written for Hofstra Law in 1992 - discussing this very question.
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Brett Kavanaugh has written about the separation of powers in his own Law Review article

He says:

"The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis. Even the lesser burdens of a criminal investigation— including preparing for questioning by criminal investigators— are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President."

One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.32

A second possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available.33 No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.34 Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.35 The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.36

Now, I did not read all of his article - but I think his position was that Congress should pass a law deferring criminal and civil actions against a president.

 
timschochet said:
Many legal questions are. But let me change the question slightly so that you can offer an opinion: 

Should a state or federal attorney general be able to indict an sitting President? What say you? 
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Again - its not a question best left to public opinion.  This is an issue that should be left to legal scholars - who have the time and research to make informed arguments on either side - and then let the SC make a call.  Off-the-cuff opinions here don't really have any import, nor should they sway any opinions.

 
Thanks for posting that- what Kavanaugh wrote was my thinking 20 years ago when Paula Jones sued Clinton- yet at that time the SC unanimously ruled that she could proceed and even held that Clinton was forced to testify. I never understood that logic. 

 
Sinn Fein said:
Again - its not a question best left to public opinion.  This is an issue that should be left to legal scholars - who have the time and research to make informed arguments on either side - and then let the SC make a call.  Off-the-cuff opinions here don't really have any import, nor should they sway any opinions.
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This is a discussion board. We’re not deciding anything. All of the opinions here are “off the cuff”, and none of them have any import. All of us are here for the purposes of our own entertainment. So what is your opinion? 

 
timschochet said:
Thanks for posting that- what Kavanaugh wrote was my thinking 20 years ago when Paula Jones sued Clinton- yet at that time the SC unanimously ruled that she could proceed and even held that Clinton was forced to testify. I never understood that logic. 
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Hence - why this is not a great topic for water-cooler talk.

This will come down to some very nuanced legal arguments bent to the will of what a majority in the SC want to say.

 
Sinn Fein said:
Its not a question that anyone here - including all the great legal minds - could answer.
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I'll answer it.

In principle, the answer has to be yes.

Otherwise, a President could bribe (or blackmail, threaten, etc.) 34 members of the Senate to vote against removal if the President is impeached. And then ... there'd simply be no remedy for any wrongdoing by the President whatsoever?

For certain types of wrongdoing, there must be a remedy. If the remedy isn't criminal charges, then it must be impeachment and removal. But if the President commits crimes that make removal impossible, such as bribing Senators not to remove him, then the remedy must be criminal charges -- at least for the bribery.

 
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Maurile Tremblay said:
I'll answer it.

In principle, the answer has to be yes.

Otherwise, a President could bribe (or blackmail, threaten, etc.) 34 members of the Senate to vote against removal if the President is impeached. And then ... there'd simply be no remedy for any wrongdoing by the President whatsoever?

For certain types of wrongdoing, there must be a remedy. If the remedy isn't criminal charges, then it must be impeachment and removal. But if the President commits crimes in order to make removal impossible, then the remedy must be criminal charges.
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For the purpose of argument, I disagree.

In the case of bribery - the senators could be charged and convicted, and sentenced to prison.  At which point, impeachment proceedings could be brought again.  And the impeached president could then be criminally charged.

 
Maurile Tremblay said:
I'll answer it.

In principle, the answer has to be yes.

Otherwise, a President could bribe (or blackmail, threaten, etc.) 34 members of the Senate to vote against removal if the President is impeached. And then ... there'd simply be no remedy for any wrongdoing by the President whatsoever?

For certain types of wrongdoing, there must be a remedy. If the remedy isn't criminal charges, then it must be impeachment and removal. But if the President commits crimes that make removal impossible, such as bribing Senators not to remove him, then the remedy must be criminal charges.
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If I understood Kavanaugh correctly, he is saying we need to wait until AFTER the President is out of office; then he can be indicted. 

What would be your objection to this argument? 

 
And for the record - I don't think this is a split decision - it is either:  Yes, a sitting president is subject to criminal process, or No, a sitting president is not subject to criminal process.

 
Sinn Fein said:
Its a trick question.

An AG can indict a president - but the real question is whether a court would quash the indictment by virtue of the position of the president.

That is an open question - subject to much legal debate, and which can only be answered by the Supreme Court.
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That i agree with. Actually RHE had a nice thread on this a while back. 

 
Maurile, the other problem I see with your logic is that, if a President can bribe Senators, theoretically he could also bribe attorneys general, and thus avoid prosecution. 

Ultimately there is no law that protects us from corruption. We depend on honest Senators, honest justice department officials. No law by itself can ever save us. 

 
And, I would add that impeachment is a political tool - but it is not the only political tool.  In the event of a President who bribes the 34 senators - there would be political ramifications that impacted the reelection of the president.  If the public wants a president who bribes senators to be president - that is their prerogative.  

Now - where Kavanaugh's argument falls short is when he says that the president is too busy doing important stuff to be bogged down by a criminal investigation/trial.  There is no practical difference between that distraction, and the distraction of Congressional investigation and impeachment.  And, even Kavanaugh agrees the later is appropriate. 

 
But I'll say this - if a state can indict someone whom the president cannot pardon, I don't see why the state can't indict the president who could arguably pardon himself.

Also - if you want a precedent for intruding into other branches, Bill Jefferson's Congressional office was raided by the FBI/DOJ pursuant to a judicial warrant. Now I think this means that DOJ can also go into the Oval Office. The oddball question is if a state can, and my guess is no. In practical application I think this works like the Andrew Johnson impeachment (that wasn't a state prosecution but that was all about who can go behind executive office doors).

 
Sinn Fein said:
In the event of a President who bribes the 34 senators - there would be political ramifications that impacted the reelection of the president.  If the public wants a president who bribes senators to be president - that is their prerogative.  
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Huey Long did this when he was impeached. What followed is truly the closest to dictatorship America has ever seen.

 
timschochet said:
FTR- my question was meant to be theoretical. I don’t believe this President or any President will ever be indicted for a crime. But if one was, would it be legal? 

And would it make any difference whether or not the crime was committed while in office, or prior to taking office? 
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Are you suggesting the President has unimpeded license to commit crime?

 
timschochet said:
Pretty simple question but a complicated answer.  The Department of Justice says no.  Lanny Davis, Michael Cohen's attorney, said this morning that they're wrong, and that the New York attorney general can do it if they want.

What are your thoughts on this?
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Ever heard of Check, Mate?

G'day.

 
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