The Nerdy Impeachment Thread (2 Viewers)

[timschochet]

So it sounds like Hamilton and Tim are saying the same thing right?  

We often do, but my hip hop isn't quite as good as his. 

 

[Yankee23Fan]

Johnson faced some ridiculous charges, but the gravamen of the charge against him was that he refused to allow Congress to restrain his power as the chief of the Executive branch.  And on the flip side, Congress felt that he was encroaching on their Constitutional prerogative.

This was a constitutional crisis.  I think that tells us something about what type of offenses seem impeachable. 

Let's look at in another way.  Consider two scenarios. 

Scenario One: Trump lies, under oath, in a deposition in civil case while serving as President.  Maybe one of the libel cases coming out the sexual assault accusations. 

Scenario Two:  Trump defies a subpoena from the Senate Intelligence Committee.

Both are, in the broadest terms, obstruction of justice.  Are they both "impeachable?"  Neither?  Or is one more impeachable than the other?

As I said above, yes many of Johnson's charges were ridiculous.  But you understand the constitutional crisis as the smoke of the civil war was still bellowing.  You can actually look at his impeachment as a good thing to ensure the integrity of the nation after war; the battles were actually really fought over federal power, and then, in the confines of that federal power, the fed itself needed a little bloodletting to figure out where it stood after it proved its point.  You could almost call it Shakespearean that it happened.  

Scenario one is not impeachable.  Scenario two is interesting but not impeachable.  It's the interplay between the branches that is normal and healthy.  Let them fight each other before the court on their exercise of their own power.

 

[timschochet]

But are there are offenses that themselves are so serious that even if they are not tied to public behavior or responsibilities that may nevertheless be impeachable? 

If for instance, it could be proven that Trump was abusing underage girls on Jeffrey Epstein's creepy sex island (I'm not endorsing the truth of these stories, which I do not believe.)?

Yes. If Trump was discovered, prior to his Presidency, to have committed rape, murder, child abuse, etc., I say yes. Certain crimes are bad enough to warrant removal. 

 

[Yankee23Fan]

So it sounds like Hamilton and Tim are saying the same thing right?  Violations of public trust.  Offenses that do some sort of violence to the very institutions of our government.  We can all probably agree, without getting into the details, that bribery and treason are those types of offense.

So is that the mirror through which we view the undefined High Crimes and Misdemeanors?  We're on page 2, and we've already gotten to my answer.  Yes, that's how we define an impeachable offense.  Offenses that fundamentally weaken our government. 

Yes, but we need to be careful to use public trust and weakening the government as swords and shields to fight political fights better left to the electorate or legal fights better left to the courts.

 

[Ramsay Hunt Experience]

does it have to be that he committed the crime or bad stuff while he was president or connected to being president or could they impeach him if mueller and boys find a bunch of financial crimes going back decades take that to the riddle me that bank bromigo

A fine question brochacho! 

Let's say Trump laundered Russian money in 2003.  But there was no coordination with Russia with respect to the election. 

Or maybe Trump laundered mafia money that wasn't tied to any foreign power?  Impeachable?  It's a crime from well before he was in a position of public trust.  It can't even be prosecuted as the SOL has likely run (I think, I don't know the SOL for money laundering).

But is having a proven money launderer as President harmful to our democratic institutions?  At a certain level of seriousness, even non-public acts have to harmful if only because they degrade the public image of the institution so much. We haven't had that case, but I'd take that to the bank. 

 

[Yankee23Fan]

But are there are offenses that themselves are so serious that even if they are not tied to public behavior or responsibilities that may nevertheless be impeachable? 

If for instance, it could be proven that Trump was abusing underage girls on Jeffrey Epstein's creepy sex island (I'm not endorsing the truth of these stories, which I do not believe.)?

Yes, there are, and to me, yes that would be one.

I might look at this slightly different than simply as a lawyer should (maybe not);  to me, ultimately, the power to remove the President has three methods - (1) the electorate, (2) the House Impeaches and the Senate convicts, and (3) the 25th Amendment.

I'd much rather have every removal take place with (1).  If we are going to use (2), we better make sure we have something more than just today's political passions.  If we are going to use (3), there better be a line of elected officials willing to fall on their own sword when they sign that document and throw us into a constitutional crises the likes of which the other two can't do.

 

[packersfan]

A fine question brochacho! 

Let's say Trump laundered Russian money in 2003.  But there was no coordination with Russia with respect to the election. 

Or maybe Trump laundered mafia money that wasn't tied to any foreign power?  Impeachable?  It's a crime from well before he was in a position of public trust.  It can't even be prosecuted as the SOL has likely run (I think, I don't know the SOL for money laundering).

But is having a proven money launderer as President harmful to our democratic institutions?  At a certain level of seriousness, even non-public acts have to harmful if only because they degrade the public image of the institution so much. We haven't had that case, but I'd take that to the bank. 

If it can be proven Trump committed a crime I would say that as the current President that is quite harmful to our entire country even if the crime occurred before he took office. We can't have a proven criminal in the White House.

Queue up the "HILLARY" "EMAIL" "BENGHAZI" hoo-ha now.

 

[Ramsay Hunt Experience]

Now, let's look at the Comey firing.  As Trump's lawyers will tell you, the head of the executive has the power to fire the Director of the FBI for any reason or no reason.  Comey agrees with that.  So, the President argues, if he can fire Comey for any reason, how could that ever be a crime or an impeachable offense?  He is also the Commander In Chief, but can he knowingly order American forces to commit war crimes? 

Assume for the sake of argument (because I don't necessarily agree) that the President's authority means that he can't be criminally charged for doing these things.  There is no "crime".  Is it nevertheless, impeachable? 

 

[Yankee23Fan]

Now, let's look at the Comey firing.  As Trump's lawyers will tell you, the head of the executive has the power to fire the Director of the FBI for any reason or no reason.  Comey agrees with that.  So, the President argues, if he can fire Comey for any reason, how could that ever be a crime or an impeachable offense?  He is also the Commander In Chief, but can he knowingly order American forces to commit war crimes? 

Assume for the sake of argument (because I don't necessarily agree) that the President's authority means that he can't be criminally charged for doing these things.  There is no "crime".  Is it nevertheless, impeachable? 

It could be.

 

[packersfan]

Now, let's look at the Comey firing.  As Trump's lawyers will tell you, the head of the executive has the power to fire the Director of the FBI for any reason or no reason.  Comey agrees with that.  So, the President argues, if he can fire Comey for any reason, how could that ever be a crime or an impeachable offense?  He is also the Commander In Chief, but can he knowingly order American forces to commit war crimes? 

Assume for the sake of argument (because I don't necessarily agree) that the President's authority means that he can't be criminally charged for doing these things.  There is no "crime".  Is it nevertheless, impeachable? 

There's no crime in firing Comey. However, if he fired Comey because of his role in an investigation into Trump's campaign doesn't that cross a very dangerous line? Trump has admitted why he fired Comey and it was all about the investigation. 

 

[Ramsay Hunt Experience]

So long story short:

I don't agree that an impeachable offense should be, or even is, whatever the House thinks it is.

I don't think all crimes are impeachable offenses, and I don't think all impeachable offenses are crimes. 

I think impeachment is proper when a President's conduct threatens the legitimacy of government institutions or impermissibly intrudes upon the prerogatives of a co-equal branch of government.  And that, IMO, is the prism through which we should view Trump's conduct. 

 

[SWC]

does it have to be that he committed the crime or bad stuff while he was president or connected to being president or could they impeach him if mueller and boys find a bunch of financial crimes going back decades take that to the riddle me that bank bromigo

A fine question brochacho! 

Let's say Trump laundered Russian money in 2003.  But there was no coordination with Russia with respect to the election. 

Or maybe Trump laundered mafia money that wasn't tied to any foreign power?  Impeachable?  It's a crime from well before he was in a position of public trust.  It can't even be prosecuted as the SOL has likely run (I think, I don't know the SOL for money laundering).

But is having a proven money launderer as President harmful to our democratic institutions?  At a certain level of seriousness, even non-public acts have to harmful if only because they degrade the public image of the institution so much. We haven't had that case, but I'd take that to the bank. 

i feel bad for asking that when the teach was done talking and everyone wanted to leave i will probably get a knuckle sandwhich in the hall after class but to be honest i have it coming take that to the dont be a gunner bank bromigos 

 

[Yankee23Fan]

So long story short:

I don't agree that an impeachable offense should be, or even is, whatever the House thinks it is.

I don't think all crimes are impeachable offenses, and I don't think all impeachable offenses are crimes. 

I think impeachment is proper when a President's conduct threatens the legitimacy of government institutions or impermissibly intrudes upon the prerogatives of a co-equal branch of government.  And that, IMO, is the prism through which we should view Trump's conduct. 

You better not be giving up and make me go back and make money today.

Oh, and I agree.  And I think the concomitant story that is told from his collective acts since the date he was sworn in give rise to the necessary act of articles of impeachment being delivered and prosecuted.

 

[Ramsay Hunt Experience]

There's no crime in firing Comey. However, if he fired Comey because of his role in an investigation into Trump's campaign doesn't that cross a very dangerous line? Trump has admitted why he fired Comey and it was all about the investigation. 

So, I'm not sure I agree that there wasn't a crime. 

Permit me an analogy.  In an "at will" state, your employer can fire your for no reason without showing good cause.  But that does not mean your employer can fire you for being black or a woman.  That is still illegal.  Under the obstruction statute, I'm not sure that a facially lawful act exercised with a corrupt purpose doesn't qualify. 

But even if I'm wrong about that, there is a concept called "abuse of authority."  Which is the misuse of authorized government powers for a corrupt purpose.  So maybe a Sheriff has given 100 citations.  And they're all facially valid.  He's probably still abusing his authority if he's just harassing you over every violation because he wants to drive you off of land he wants to buy. 

And that's the Comey question, IMO.  Is this an abuse of authority.  And one reason why we might wait is because we don't yet know exactly how corrupt the purpose was.  But if he were to fire Sessions, Rosenstein, and Mueller, maybe we wouldn't need to wait.  Particularly if he tried to do it during a recess (this is kind of moot because the Senate is keeping pro forma sessions going while in recess).  We could probably infer corrupt intent at that point because he's so consistently tried to scupper the investigation. 

 

[lardonastick]

 

[packersfan]

So, I'm not sure I agree that there wasn't a crime. 

Permit me an analogy.  In an "at will" state, your employer can fire your for no reason without showing good cause.  But that does not mean your employer can fire you for being black or a woman.  That is still illegal.  Under the obstruction statute, I'm not sure that a facially lawful act exercised with a corrupt purpose doesn't qualify. 

But even if I'm wrong about that, there is a concept called "abuse of authority."  Which is the misuse of authorized government powers for a corrupt purpose.  So maybe a Sheriff has given 100 citations.  And they're all facially valid.  He's probably still abusing his authority if he's just harassing you over every violation because he wants to drive you off of land he wants to buy. 

And that's the Comey question, IMO.  Is this an abuse of authority.  And one reason why we might wait is because we don't yet know exactly how corrupt the purpose was.  But if he were to fire Sessions, Rosenstein, and Mueller, maybe we wouldn't need to wait.  Particularly if he tried to do it during a recess (this is kind of moot because the Senate is keeping pro forma sessions going while in recess).  We could probably infer corrupt intent at that point because he's so consistently tried to scupper the investigation. 

Yeah I don't know whether it was a crime or not. I think you can make the argument Trump had the authority to do what he did. It's the reason why he did it that can be called into question.

 

[SaintsInDome2006]

Hey @Ramsay Hunt Experience, Henry & Jon have been having a discussion on what would happen if the NY AG tried to indict and arrest Trump.

Any thoughts?

 

[Ramsay Hunt Experience]

Hey @Ramsay Hunt Experience, Henry & Jon have been having a discussion on what would happen if the NY AG tried to indict and arrest Trump.

Any thoughts?

It's not really settled. I know DOJ OLP have looked at it at least twice and came to different conclusions. My guess is that SCOTUS would come it jon's way, but all that Article II stuff is by implication. There's no controlling provision. I would think that federal soveignty would control against a state claim. 

 

[SaintsInDome2006]

It's not really settled. I know DOJ OLP have looked at it at least twice and came to different conclusions. My guess is that SCOTUS would come it jon's way, but all that Article II stuff is by implication. There's no controlling provision. I would think that federal soveignty would control against a state claim. 

@jon_mx Fyi.

 

[SaintsInDome2006]

It's not really settled. I know DOJ OLP have looked at it at least twice and came to different conclusions. My guess is that SCOTUS would come it jon's way, but all that Article II stuff is by implication. There's no controlling provision. I would think that federal soveignty would control against a state claim. 

State and local police have obviously arrested federal officials before though, right? Many Congressmen, Senators and federal judges have been arrested. Nobody ever stopped a state criminal charge on immunity IIRC. There shouldn't be any difference between Art. I, Art. II, & Art. III officials in terms of whether they can be arrested and indicted by state authority, right? 

 

[jon_mx]

  1 hour ago, Ramsay Hunt Experience said:
It's not really settled. I know DOJ OLP have looked at it at least twice and came to different conclusions. My guess is that SCOTUS would come it jon's way, but all that Article II stuff is by implication. There's no controlling provision. I would think that federal soveignty would control against a state claim. 

@Zow.  I have no doubt you have more knowledge than me on criminal law at the federal level.  But there are different opinions from people who have looked at this question more thoroughly.   My point has merit.   Who knows how the court would rule?   It may come down to a swing vote.  

 

[jon_mx]

State and local police have obviously arrested federal officials before though, right? Many Congressmen, Senators and federal judges have been arrested. Nobody ever stopped a state criminal charge on immunity IIRC. There shouldn't be any difference between Art. I, Art. II, & Art. III officials in terms of whether they can be arrested and indicted by state authority, right? 

Congress has limited immunity from arrest while in session.   Diplomats have immunity.  There are cases where national interest take precedence. 

 

[SaintsInDome2006]

Congress has limited immunity from arrest while in session.   Diplomats have immunity.  There are cases where national interest take precedence. 

I think that's a better argument, like the idea that federal courts might feel that litigating a criminal case would impose too much stress on the presidency, however that is not based on the relationship between the federal vs state authorities. But overall IMO it's a better point.

 

[SaintsInDome2006]

Things are getting a little Andrew Johnsonish up in here...

- The current head of the CFPB has sued the President claiming he does not have the power to appoint a different person as head of the CFPB.

- Fwiw it sounds like (gasp) Trump is in the right here (no I won't try to back that up...) but technically this was one of the bases for impeaching Andrew Johnson. If really if there has ever been a legislative struggle over a presidential appointment authority of this type since Johnson. Again, not sure... but again seems correct.

 

[Henry Ford]

It's not really settled. I know DOJ OLP have looked at it at least twice and came to different conclusions. My guess is that SCOTUS would come it jon's way, but all that Article II stuff is by implication. There's no controlling provision. I would think that federal soveignty would control against a state claim. 

Sorry I missed this thread.

I don't entirely understand what you mean here.  Are you saying the President would be immune from all State law prosecution simply by virtue of being the President?  

 

[Henry Ford]

Congress has limited immunity from arrest while in session.   Diplomats have immunity.  There are cases where national interest take precedence. 

Two things about this:

1)  that's an actual clause in the Constitution.  Obviously, if they'd intended to give the same to the President they could have, but they didn't.

2) That "limited immunity" doesn't include Treason, Breach of the Peace, or any Felony.

I'd say that the failure to include such a clause for the President is pretty fatal to this argument, but even if it isn't, if he's arrested it will be on a felony.

 

[Ramsay Hunt Experience]

Sorry I missed this thread.

I don't entirely understand what you mean here.  Are you saying the President would be immune from all State law prosecution simply by virtue of being the President?  

While in office, yes.  

 

[SaintsInDome2006]

While in office, yes.  

Wasn't this covered by the Aaron Burr situation? He had state warrants out for him, even if he wasn't prosecuted (IIRC).

 

[thecatch]

Things are getting a little Andrew Johnsonish up in here...

- The current head of the CFPB has sued the President claiming he does not have the power to appoint a different person as head of the CFPB.

- Fwiw it sounds like (gasp) Trump is in the right here (no I won't try to back that up...) but technically this was one of the bases for impeaching Andrew Johnson. If really if there has ever been a legislative struggle over a presidential appointment authority of this type since Johnson. Again, not sure... but again seems correct.

Here’s a good argument backing up the administration’s view of the law, which goes into the legal particulars. I find this persuasive.  http://yalejreg.com/nc/for-better-or-worse-mick-mulvaney-probably-is-the-acting-director-of-the-cfpb/

 

[Henry Ford]

While in office, yes.  

Why?

 

[Ramsay Hunt Experience]

Wasn't this covered by the Aaron Burr situation? He had state warrants out for him, even if he wasn't prosecuted (IIRC).

I'm not aware of any state warrants for Burr's arrest while he was vice president.  Jefferson issued a federal warrant for treason after Burr left the vice presidency.

In any case, the vice president is not the sovereign.  The President is.  

 

[bud29]

 

[Henry Ford]

I'm not aware of any state warrants for Burr's arrest while he was vice president.  Jefferson issued a federal warrant for treason after Burr left the vice presidency.

In any case, the vice president is not the sovereign.  The President is.  

You appear to be using the term "sovereign" in a way it simply doesn't apply in the United States.

Sovereign immunity is "governmental actor" immunity, not immunity of the crown.

 

[Ramsay Hunt Experience]

Why?

I think that's the constitutional design (and also seems to be what Hamilton argued in Federalist 69).  Admittedly, the question of even federal prosecutions remains undecided, but I think that in general, the design of the Constitution would not allow the person imbued with the full power of the federal executive to be vulnerable to political attack by trumped up (pun intended) state charges.  A President facing criminal charges would be so effectively neutered as a practical matter, that I think the rationale for Nixon v. Fitzgerald would apply.  

The impeachment clause makes clear that the President can be tried and convicted after he is removed from office.  I also think he could probably be indicted so long as the case is stayed (and the President waives his right to invoke the Speedy Trial Clause).  But I don't think he could be tried, convicted, or arrested.  

 

[SaintsInDome2006]

I'm not aware of any state warrants for Burr's arrest while he was vice president.  Jefferson issued a federal warrant for treason after Burr left the vice presidency.

In any case, the vice president is not the sovereign.  The President is.  

Personally I think you're way too deferential of the executive branch, in fact use of the term 'sovereign' in that context could be almost a Tory monarchism that I find it almost impossible to believe the Founders would have ever tolerated. This kind of deference is potentially a blank check for misbehavior by Trump or anyone like him in the future.

Also personally I think the VP should sit in the same position as the President constitutionally.

 

[Henry Ford]

I think that's the constitutional design (and also seems to be what Hamilton argued in Federalist 69).  Admittedly, the question of even federal prosecutions remains undecided, but I think that in general, the design of the Constitution would not allow the person imbued with the full power of the federal executive to be vulnerable to political attack by trumped up (pun intended) state charges.  A President facing criminal charges would be so effectively neutered as a practical matter, that I think the rationale for Nixon v. Fitzgerald would apply.  

The impeachment clause makes clear that the President can be tried and convicted after he is removed from office.  I also think he could probably be indicted so long as the case is stayed (and the President waives his right to invoke the Speedy Trial Clause).  But I don't think he could be tried, convicted, or arrested.  

Nixon v. Fitzgerald (Burger's concurrence)

This is not to say that, in a given case, it would not be appropriate to raise the question whether an official -- even a President -- had acted within the scope of the official's constitutional and statutory duties. The doctrine of absolute immunity does not extend beyond such actions.

 

[Ramsay Hunt Experience]

Personally I think you're way too deferential of the executive branch, in fact use of the term 'sovereign' in that context could be almost a Tory monarchism that I find it almost impossible to believe the Founders would have ever tolerated. This kind of deference is potentially a blank check for misbehavior by Trump or anyone like him in the future.

I don't personally believe in sovereign immunity.  I side with Brennan that in the United States, the people should be sovereign.  But it is established doctrine.  With that said, I'll stop phrasing it as a sovereign immunity argument.  It's a separation of powers argument (which applies to both co-equal branches of government and dual sovereigns).  The entire executive power of the United States is vested in the Presidency.  The remedy for abuses of that authority, impeachment, is clearly defined in the constitution.  If any state were able to try a sitting President on criminal charges while in office, that would be a massive separation of powers problem.  There is no possible way that it wouldn't interfere with the functioning of the executive branch.  

Also personally I think the VP should sit in the same position as the President constitutionally.

That's just not what Article II says.  The executive power rests with the President.  Full stop.  




2

 

[Ramsay Hunt Experience]

Wasn't this covered by the Aaron Burr situation? He had state warrants out for him, even if he wasn't prosecuted (IIRC).

Sorry about this.  I was wrong.  Burr was indicted in New York and New Jersey.  

 

[Henry Ford]

This feels all over the map, as an argument.  The resting of executive authority with the President is meaningless if we're analogizing to judges and prosecutors, based on the rationale in Nixon.  What matters is whether the action was a discretionary action taken in furtherance of the duties of the office, otherwise no immunity.

Judges aren't entitled to immunity from prosecution for their actions taken outside of the office.  Prosecutors aren't.  Congress isn't if it's a felony, and even if it isn't, if they're not physically in session they aren't.  Why does that case give even an analogy for the President to have immunity from prosecution?

 

[Ramsay Hunt Experience]

FWIW, everyone agrees that this is an unsettled question.  But my position is the majority position among scholars.  A notable exception is Professor Freedman at Hofstra.  

 

[Henry Ford]

FWIW, everyone agrees that this is an unsettled question.  But my position is the majority position among scholars.  A notable exception is Professor Freedman at Hofstra.  

As to federal prosecutions, absolutely.  I believe the question is significantly more muddled when discussing state prosecution.

 

[Ramsay Hunt Experience]

This feels all over the map, as an argument.  The resting of executive authority with the President is meaningless if we're analogizing to judges and prosecutors, based on the rationale in Nixon.  What matters is whether the action was a discretionary action taken in furtherance of the duties of the office, otherwise no immunity.

Judges aren't entitled to immunity from prosecution for their actions taken outside of the office.  Prosecutors aren't.  Congress isn't if it's a felony, and even if it isn't, if they're not physically in session they aren't.  Why does that case give even an analogy for the President to have immunity from prosecution?

Powell literally quotes this passage from Justice Story:

"There are . . . incidental powers belonging to the executive department which are necessarily implied from the nature of the functions which are confided to it. Among these must necessarily be included the power to perform them. . . . The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability."




 

Powell then states the central rationale for the holding in Fitzgerald:

 It is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the President of the United States. But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.  




 

When discussing the appropriate exercise of jurisdiction Powell mentions the Steel Seizure cases and cases related to the public's interest in an ongoing criminal investigation, but not a criminal case against the President.  If the type of intrusions we are worried about are those that intrude on the authority and functions of the Executive Branch, it's tough to see how a criminal prosecution wouldn't qualify.  

 

[Ramsay Hunt Experience]

As to federal prosecutions, absolutely.  I believe the question is significantly more muddled when discussing state prosecution.

Most scholars think the federal question is largely moot (because the President could simply fire any federal prosecutor).  Scholars wouldn't talk about the separation of powers if they were just talking about federal prosecutions.  There's no separation of powers question.  

 

[Henry Ford]

Powell literally quotes this passage from Justice Story:

Powell then states the central rationale for the holding in Fitzgerald:

When discussing the appropriate exercise of jurisdiction Powell mentions the Steel Seizure cases and cases related to the public's interest in an ongoing criminal investigation, but not a criminal case against the President.  If the type of intrusions we are worried about are those that intrude on the authority and functions of the Executive Branch, it's tough to see how a criminal prosecution wouldn't qualify.  

Yes.  Balance the interests to be served against the dangers.  That is not an absolute immunity from prosecution.  If the President goes on a murder and rape tour of the United States, he's going to be arrested, whether or not his party is willing to impeach him.  If he gets thousands of parking tickets he isn't.  Furthermore, even Story includes while he is in the discharge of the duties of his office.

So... out on the golf course, then?  Trump can be picked up in the paddy wagon?

 

[Henry Ford]

Most scholars think the federal question is largely moot (because the President could simply fire any federal prosecutor).  Scholars wouldn't talk about the separation of powers if they were just talking about federal prosecutions.  There's no separation of powers question.  

Of course there is.  Does the federal judicial branch have the authority to issue a warrant for arrest of the head of the executive? Or, where a special prosecutor not subject to the authority of the President has been appointed, does he or she have authority to proceed?

Trump doesn't have the authority to fire Mueller.  Previous prosecutors have operated under a significantly more autonomous provision than even Mueller.

I don't understand why you're talking about separation of powers when you're discussing federalism concerns.

 

[Ramsay Hunt Experience]

Yes.  Balance the interests to be served against the dangers.  That is not an absolute immunity from prosecution.  If the President goes on a murder and rape tour of the United States, he's going to be arrested, whether or not his party is willing to impeach him.  If he gets thousands of parking tickets he isn't.  Furthermore, even Story includes while he is in the discharge of the duties of his office.

So... out on the golf course, then?  Trump can be picked up in the paddy wagon?

In context, Story clearly isn't talking about physical proximity to his office.  He's talking about the duration of his term.  The President would be denied the power to perform his office just as much if he were arrested while playing golf as when having a cabinet meeting.  

I don't think your hypothetical is particularly useful.  If the President is so protected by his cabinet and the Congress (so that neither the 25th Amendment or impeachment would be invoked) what practical ability would the state have to arrest him?  It would prompt a Constitutional crisis and likely military action.  Suffice it to say that we rely on impeachment working when the offense is serious enough.  If the country has gone bat#### crazy enough so that he wouldn't be impeached in that situation, I'm not sure we can fault the law for failing to anticipate that.

 

[Ramsay Hunt Experience]

 Does the federal judicial branch have the authority to issue a warrant for arrest of the head of the executive? 




1

That's a silly question.  Who would execute the warrant?

 

[Henry Ford]

In context, Story clearly isn't talking about physical proximity to his office.  He's talking about the duration of his term.  The President would be denied the power to perform his office just as much if he were arrested while playing golf as when having a cabinet meeting.  

I don't think your hypothetical is particularly useful.  If the President is so protected by his cabinet and the Congress (so that neither the 25th Amendment or impeachment would be invoked) what practical ability would the state have to arrest him?  It would prompt a Constitutional crisis and likely military action.  Suffice it to say that we rely on impeachment working when the offense is serious enough.  If the country has gone bat#### crazy enough so that he wouldn't be impeached in that situation, I'm not sure we can fault the law for failing to anticipate that.

In context?  That's from "Commentaries on the Constitution of the United States" section 1569.  I don't agree with your statement about context there.  He very clearly is discussing the actual acts of discharging his duties, and in explains he specifically means at least in civil cases he's inviolable.  Seems pretty clear that the question of whether he is in criminal cases is absolutely left open even by Story. The section following that quote makes it absolutely clear that he's saying that in the case of exercise of some of his actual powers - express and implied - he is "accountable only to his country and to his own conscience."  Which is only about the powers themselves being exercised.

And of course it's not particularly useful.  This is the nerdy thread.  If we want to talk about practical solutions, of course impeachment is the most likely.  That doesn't make it the only Constitutional act possible. 

 

[Henry Ford]

That's a silly question.  Who would execute the warrant?

You seem to think that the President can indiscriminately fire any person working for any executive branch agency.  I don't think that's a reasonable interpretation of his authority.

The court has authority to authorize an officer other than a U.S. Marshal to execute an arrest warrant under Rule 4.

 

[SaintsInDome2006]

Here’s a good argument backing up the administration’s view of the law, which goes into the legal particulars. I find this persuasive.  http://yalejreg.com/nc/for-better-or-worse-mick-mulvaney-probably-is-the-acting-director-of-the-cfpb/

Trump may be in the right here {cough...} but it's really up to the court. This just seems like a potential comp for what precipitated the Johnson impeachment and there never has been another like it I believe. I think RHE pointed this out but AJ may have been constitutionally correct too, but IIRC it was his conflict with Congress and the courts of who got to appoint the Secretary of War (?). Trump may be right but if the court rules against him and Mulvaney doesn't budge, what then?