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Old 09-19-2019, 01:40 PM
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The President is essentially above the law


President Trump through his lawyers is invoking immunity from prosecution again. In essence, he is saying that for as long as he is President, he is above the law. He could commit a crime while in office, and cannot be prosecuted or impeached particularly if he has a partisan majority in the senate - as is the case now. Even if he was impeached, and removed from office, he would be immediately pardoned by the man he selected as his running mate and vice president, so then he is above the law.
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Old 09-19-2019, 01:43 PM
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To which of the current chief executive's various and sundry imbroglios does the OP refer?
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Old 09-19-2019, 01:55 PM
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"Trump's lawsuit against Vance and Mazars is the boldest step his administration has taken against prosecutors who wish to investigate him. His lawyer Jay Sekulow said in a statement that the lawsuit is "to address the significant constitutional issues at stake in this case."

The lawsuit states that "virtually 'all legal commenters agree' that a sitting president of the United States is not 'subject to the criminal process' while he is in office." It asks a federal judge to prohibit Vance and Mazars from enforcing the subpoena until Trump leaves office."

https://www.usnews.com/news/politics...or-tax-returns
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Old 09-19-2019, 05:46 PM
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Even if he was impeached, and removed from office, he would be immediately pardoned by the man he selected as his running mate and vice president, so then he is above the law.
This has always been the case. Remember Nixon? Ford wasn't even elected.

~Max
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Old 09-19-2019, 05:57 PM
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He could commit a crime while in office, and cannot be prosecuted or impeached particularly if he has a partisan majority in the senate - as is the case now.
He can be, but that would require the Republicans to "turn" on the president (unlikely). Also, the House does impeachment.

Reading through Clinton v. Jones (1997), I think it might be possible to sue the president in a private civil case for actions taken during the presidency, so long as such actions are not official, and the private lawsuit does not interfere with the President's constitutionally assigned duties.

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Old 09-19-2019, 06:00 PM
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The republican party has decided that America is no longer a country ruled by law; it is a country ruled by dictatorial mandate. Trump plays dictator and Congress is held back by the republicans from stopping him. And as long as they can gerrymander their 35% popular support into a majority, they can carry on this way.

Trump's probably not their first choice of dictator, but you work with what you've got.
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Old 09-19-2019, 06:05 PM
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And there is no reasonable reading of Article 1 that supports that fucking OLC memo. That thing is completely absurd and is the executive branch taking on the judiciary role. Pisses me off. Oh shit, this isn't BBQ?
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Old 09-19-2019, 06:07 PM
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My understanding that the President cannot be indicted federally by DOJ policy, and that there is no specific law against it. So why would DOJ policy apply to a state?

And even it it does, if a president cannot be indicted while sitting, does that mean a crime can't be investigated? Crimes are usually (always ?) investigated before indictment.
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Old 09-20-2019, 12:25 AM
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My understanding that the President cannot be indicted federally by DOJ policy, and that there is no specific law against it. So why would DOJ policy apply to a state?

And even it it does, if a president cannot be indicted while sitting, does that mean a crime can't be investigated? Crimes are usually (always ?) investigated before indictment.
My concerns about charging and investigating a sitting president are the following:
  • What are you going to do to him? It's not like you can send the president to jail.
  • You might not even be able to compel his appearance in court
  • The president can fire any federal prosecutors at will
  • Good luck finding an impartial jury
  • The president handles sensitive information that should not be available to just any prosecutor
  • The president in his official actions is definitely immune from personal liability

~Max
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Old 09-20-2019, 08:03 AM
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Add to this that he has promised pardons to folks who obey his orders, but by doing so break the law, and you have a dictatorship.
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Old 09-20-2019, 08:07 AM
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Donald's lawyers contend that he cannot be prosecuted or even investigated for anything, no matter what the offense, as long as he is in the White House. Interesting theory. So he could shoot someone on 5th Avenue, and the local police would have to say "We'd like to arrest him, but he's got this yellow card that says "Get out of prosecution and investigation free".

The Republican Party has taken the attitude that it doesn't matter that the president is a criminal, the only thing that matters is getting those right wing judges appointed, gutting regulation, and cutting taxes. They don't mind despotism, as long as it is their despot.
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Old 09-20-2019, 08:09 AM
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The republican party has decided that America is no longer a country ruled by law; it is a country ruled by dictatorial mandate. Trump plays dictator and Congress is held back by the republicans from stopping him. And as long as they can gerrymander their 35% popular support into a majority, they can carry on this way.
That's a bit hyperbolic. It's not "Congress held back by the republicans", but rather that the Republicans control one house of Congress, while the Democrats control the other.

And while I'm not a Trump fan, it's the people's job to vote in more sympathetic Senators if they so desire the Senate to go along with the House on impeachment. There's no gerrymandering in the Senate, as they're at-large within each state.
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Old 09-20-2019, 08:12 AM
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The "gerrymandering", as it were, is built in to the senate. 50% of the US population is represented by something like 18 or 20 out of 100 senators.
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Old 09-20-2019, 09:32 AM
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Donald's lawyers contend that he cannot be prosecuted or even investigated for anything, no matter what the offense, as long as he is in the White House. Interesting theory. So he could shoot someone on 5th Avenue, and the local police would have to say "We'd like to arrest him, but he's got this yellow card that says "Get out of prosecution and investigation free".

The Republican Party has taken the attitude that it doesn't matter that the president is a criminal, the only thing that matters is getting those right wing judges appointed, gutting regulation, and cutting taxes. They don't mind despotism, as long as it is their despot.
It is not a coincidence that every idiot making the argument "the USA isn't a democracy, it's a republic" is a Trumpist. It's now so common a thing to see online that I'm convinced the Republican Party and its Russian paymasters are spreading it to convince their peons that the USA doesn't need fair elections.
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Old 09-20-2019, 09:39 AM
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It is not a coincidence that every idiot making the argument "the USA isn't a democracy, it's a republic" is a Trumpist. It's now so common a thing to see online that I'm convinced the Republican Party and its Russian paymasters are spreading it to convince their peons that the USA doesn't need fair elections.
I think the United States is not a democracy, but a republic. But I'm not a "Trumpist". Does that mean I'm not an idiot either? What point are you trying to make here?

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Old 09-20-2019, 11:05 AM
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The "gerrymandering", as it were, is built in to the senate. 50% of the US population is represented by something like 18 or 20 out of 100 senators.
You don't seem to get the Senate... it doesn't and isn't supposed to represent the people.

It's NOT supposed to be proportionately representative. It represents the States as sovereign entities within our Federal system, not as variable sized collections of people. That's what the House's purpose is.

In other words, the California House delegation is 53 people, while Wyoming's is one. But as sovereign states within the Federal system, Wyoming and California are equals, which is why each gets two senators.

It's specifically designed to give smaller states an equal voice in that particular legislative body, which I think you have to have in a Federal system. It's also designed to be a brake on the "fickleness and passion" of the House as the Founding Fathers saw it. That function is more manifest in it being a smaller body with members having longer, staggered terms of office, and originally by its members being chosen by state legislatures.
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Old 09-20-2019, 11:52 AM
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That's a bit hyperbolic. It's not "Congress held back by the republicans", but rather that the Republicans control one house of Congress, while the Democrats control the other.
It's not hyperbolic; it's fact. The republicans are indeed holding Congress back. This is not to say that there aren't also Democrats in congress, but those democrats alternate being totally blocked and merely worried about the political viability of them attempting to do anything due to the high probability of blockage.

Suffice to say, were there NOT republicans in congress holding things back, Trump would either be much, much more constrained, or just a faint memory.

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There's no gerrymandering in the Senate, as they're at-large within each state.
Oh, there's definitely gerrymandering - it's just that it was intended to be regional gerrymandering, not party gerrymandering. The fact that the political parties have fallen out as being an urban/rural split just makes it work out in the republican's favor.

In any case there's also a fair bit of district-level gerrymandering going on too.
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Old 09-20-2019, 12:20 PM
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It is not a coincidence that every idiot making the argument "the USA isn't a democracy, it's a republic" is a Trumpist. It's now so common a thing to see online that I'm convinced the Republican Party and its Russian paymasters are spreading it to convince their peons that the USA doesn't need fair elections.
There are two definitions of "democracy" being used here. One is a broad category of, loosely speaking, "governments by the people" and the other is a more particular description of the more general form. So, depending on the context, calling the US a "democracy" can be an absolutely correct descriptor or it can range from an oversimplified description to a disingenuously incomplete one.

If someone takes issue with calling the US a "democracy" in the broad, general sense then they are being unnecessarily pedantic. However, if the particular features of US democracy, that it is the "Constitutional Federated Republic" sub-type of the broader type "democracy" for example, are germane to the discussion then not only is not pedantic but potentially extremely relevant. And in those types of discussions people who repeatedly insist that the US is simply a "democracy" are usually trying to gloss over or even completely ignore those particular features because they contradict whatever point they are advocating for under the broader rubric of "democracy."
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Old 09-20-2019, 02:20 PM
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The President of the United States is not above the law.

Donald Trump is getting away with breaking the law because his fellow Republicans are refusing to act.

Sheriff Roscoe may have never arrested Boss Hogg but that didn't mean Boss Hogg was above the law.

We don't need to change our legal system. We can solve this current problem by replacing the people who are in office.
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Old 09-20-2019, 04:38 PM
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The President of the United States is not above the law.

Donald Trump is getting away with breaking the law because his fellow Republicans are refusing to act.

Sheriff Roscoe may have never arrested Boss Hogg but that didn't mean Boss Hogg was above the law.

We don't need to change our legal system. We can solve this current problem by replacing the people who are in office.
Please explain the practical difference between "The law will not touch you" and "The law cannot touch you".
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Old 09-20-2019, 04:45 PM
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Please explain the practical difference between "The law will not touch you" and "The law cannot touch you".
The latter is where the law-enforcers' personal scruples lead them to want to follow the law as written, so they regretfully leave you alone, and the former is where the law-enforcers' personal 'scruples' lead them to want to disregard the law as written, so they gleefully leave you alone.
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Old 09-20-2019, 04:46 PM
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Either way, you remain untouched by the law.
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Old 09-20-2019, 04:58 PM
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Either way, you remain untouched by the law.
Yep!

It's exactly like jury nullification, except by people who are paid to know better, and (in this case) the people doing it are doing it to be accessories to crime.
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Old 09-20-2019, 07:06 PM
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FWIW, that's actually, legitimately the case in France since the Chirac years. It was beautiful, too : Chirac was involved in any number of crooked schemes and the judges were circling around him so the (at the time) right-wing parliament hurriedly passed a law stating that the President could not be indicted while in office, for any reason.

I wouldn't recommend it, for Reasons.
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Old 09-20-2019, 07:32 PM
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Please explain the practical difference between "The law will not touch you" and "The law cannot touch you".
The laws we need are all there on the books. Now we just need to hire people who will enforce them.
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Old 09-21-2019, 04:29 AM
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He can be, but that would require the Republicans to "turn" on the president (unlikely). Also, the House does impeachment.

Reading through Clinton v. Jones (1997), I think it might be possible to sue the president in a private civil case for actions taken during the presidency, so long as such actions are not official, and the private lawsuit does not interfere with the President's constitutionally assigned duties.

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Lots of legal commentary has written that the case might no longer be good law, since the underlying assumption, was proved wrong pretty quickly.
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Old 09-21-2019, 09:34 AM
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Lots of legal commentary has written that the case might no longer be good law, since the underlying assumption, was proved wrong pretty quickly.
Which assumption? I suspect you refer to the assumption that that lawsuit in particular - "as well as the potential additional litigation that an affirmance of the Court of Appeals judgment might spawn - may impose an unacceptable burden on the President's time and energy, and thereby impair the effective performance of his office."

I disagree; if Mr. Clinton hadn't lied in court, it wouldn't have been as big of a deal. I don't think it should have been a big deal anyways - civil perjury isn't really a jailworthy offense, but oh well.

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Old 09-21-2019, 04:22 PM
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It is not merely that Trump feels he is above the law; the entire administration is above the law. According to the law the heads of certain congressional committees have the statutory right to see anyone's tax return. Trump orders the IRS not to release his and they obey him. They should be subject to indictment from Justice for violating the law. But the DOJ is run by the AG and will not enforce the law. Contempt of congress? Who is to enforce it? The DOJ. The only possible solution is to impeach the AG. So the entire administration is engaged in being massively above the law. And Moscow Mitch chortles all the time.
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Old 09-21-2019, 10:18 PM
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I'm starting to think the Department of Justice needs to report to the Judiciary branch. It has worked out reasonably well under the Executive branch up to now, but William Barr has completely destroyed the integrity of the Attorney General's office. I think the only way to ensure that an evil corrupt president will not be above the law is to remove the AG from under his control or influence. While we're at it, make an amendment that specifically says that sitting presidents can be indicted.
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Old 09-21-2019, 10:58 PM
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Oh, there's definitely gerrymandering - it's just that it was intended to be regional gerrymandering, not party gerrymandering. The fact that the political parties have fallen out as being an urban/rural split just makes it work out in the republican's favor.

In any case there's also a fair bit of district-level gerrymandering going on too.
Is there? I'm willing to accept data on this.

If a state is 51% party A, you can just barely draw a line such that both Senate seats go to part A. But if the state is 49% party A, it's not possible. No matter how you draw the line, at least 1 seat will go to party A.

The primary problem seems to be that individual States can be utter failures economically and education wise and everything else. And then all the people move out of those states in favor of states that offer better things.

Yet, this system of giving each State 2 votes - and making the Senate more important in the legislature than the House in most critical respects - means that less successful states get more political power relative to their population?!

Taken to the extreme - states could make themselves so difficult to live in that they get abandoned. They could have negative taxes on wealthy people. Publicly funded police and schools could be illegal. Same with utilities and roads. Only millionaires and billionaires who fly in by private airplanes and have private armies to protect their property could live in them.

And then both Senate votes AND 2 house seats go to each of these wastelands.

Last edited by SamuelA; 09-21-2019 at 11:00 PM.
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Old 09-23-2019, 08:24 AM
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Oh, there's definitely gerrymandering - it's just that it was intended to be regional gerrymandering, not party gerrymandering. The fact that the political parties have fallen out as being an urban/rural split just makes it work out in the republican's favor.

In any case there's also a fair bit of district-level gerrymandering going on too.
I'm failing to see how one party controlling one house of Congress and the other party controlling the other isn't ALWAYS "Party X is holding up Congress". In any event, that's more of a feature than a bug; the system is designed to put as many impediments in the way of rashly considered popular initiatives as possible, and IMO, rightly so.

There's a whole lot of stupid going on in the populace at large, and just because they want something and vote for it RIGHT NOW, doesn't mean that it's a good idea, and the Senate and other institutional buffers and stumbling blocks are intended to mitigate that. Without them, how many more Prohibition-level idiocies would the American people have perpetrated on themselves?

And I think you misunderstand gerrymandering w.r.t. the Senate. The boundaries of states don't change, and they're directly elected by the people. By definition, gerrymandering can't be going on. Whatever it is you think is going on, it's not gerrymandering, as that's the redrawing of district boundaries at every census for political gain. Since state boundaries don't change, it's not gerrymandering.

And AGAIN, the point of the Senate isn't to be representative of the people. It represents the States as equal entities in the Federal system, which is inherently not proportional. The House is done proportionately, but the Senate is intended not to be, and it never has been. In fact, it's a compromise done 230 some-odd years ago specifically to balance large vs. small states.
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Old 09-23-2019, 10:00 AM
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I'm starting to think the Department of Justice needs to report to the Judiciary branch. It has worked out reasonably well under the Executive branch up to now, but William Barr has completely destroyed the integrity of the Attorney General's office. I think the only way to ensure that an evil corrupt president will not be above the law is to remove the AG from under his control or influence. While we're at it, make an amendment that specifically says that sitting presidents can be indicted.
The executive branch enforces the laws, as per the constitution. The Department of Justice enforces the laws, and is part of this branch. How will the executive branch enforce the laws, then? A new department? What's to prevent the head of this new department from doing what Barr is doing?

No, the solution is to impeach Barr.
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Old 09-23-2019, 10:16 AM
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And of course, find him guilty in his Senate trial. I am aware that this is extremely unlikely. But even if what you suggest could be done, it is not a long term solution. I am however all for getting rid of this DoJ guideline that says you can't indict a sitting president. That's bullshit.

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Old 09-23-2019, 02:35 PM
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This has always been the case. Remember Nixon? Ford wasn't even elected.

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wasn't Ford elected with Nixon?
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Old 09-23-2019, 02:49 PM
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wasn't Ford elected with Nixon?
No Spiro Agnew was. And resigned for tax evasion, Ford was appointed VP.
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Old 09-23-2019, 03:22 PM
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I'm failing to see how one party controlling one house of Congress and the other party controlling the other isn't ALWAYS "Party X is holding up Congress". In any event, that's more of a feature than a bug; the system is designed to put as many impediments in the way of rashly considered popular initiatives as possible, and IMO, rightly so.
It's my understanding that McConnell isn't allowing things to be voted on, based on partisan bullshit. That's the republicans (specifically, a republican) literally preventing Congress from functioning as designed. That's a level beyond "one house is voting down the other".
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Old 09-23-2019, 03:44 PM
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wasn't Ford elected with Nixon?
Ford was appointed by Nixon when Vice President Agnew resigned on October 10, 1973. Ford, known for his criticism of President Johnson's handling of the Vietnam War, had been House Minority Leader immediately preceding his nomination as Vice President. He represented Michigan's 5th district and aspired to become Speaker of the House. The Senate confirmed his nomination for the Vice Presidency 92-3 on November 7, 1973. The House confirmed his nomination 387-35 on December 6, 1973 and Vice President Ford took the oath of office an hour later.

The Watergate scandal had been in full force for some time already. The break-in took place in '72 and the infamous "Saturday night massacre" happened on October 20, 1973 - after Agnew resigned and before Ford was confirmed.

President Nixon himself resigned on August 9, 1974. President Ford issued a presidential pardon on September 8, 1974. His approval ratings instantly dropped twenty percent. Of all the conspiracy theories that float around out there, the supposed "corrupt bargain" between Nixon and Ford isn't terribly far-fetched.

~Max
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Old 09-23-2019, 06:28 PM
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I'm starting to think the Department of Justice needs to report to the Judiciary branch. It has worked out reasonably well under the Executive branch up to now, but William Barr has completely destroyed the integrity of the Attorney General's office. I think the only way to ensure that an evil corrupt president will not be above the law is to remove the AG from under his control or influence. While we're at it, make an amendment that specifically says that sitting presidents can be indicted.
The main problem with this is that the DOJ is intended to be the government's (prosecutorial) legal team and if they were in the judiciary, it would be the judiciary making a case to itself.

The problems in the US are

-The "unitary executive theory" trend where legitimate federal law enforcement activities outside of the executive branch are marginalized.

-Having presidents that require a high bar from congress to be removed, and are only supposed to be removed by something that at least is supposed to look like a criminal trial. Parliamentary systems where the legislature can collapse the government with a simple majority vote IMO work better especially in situations like this.

EDIT: One thing that could potentially work more with minimal overhaul to our current system would be to make the AG an elected position separate from the President. There might be unintended consequences however.

Last edited by str8cashhomie; 09-23-2019 at 06:33 PM.
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Old 09-23-2019, 07:49 PM
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-The "unitary executive theory" trend where legitimate federal law enforcement activities outside of the executive branch are marginalized.
I'm not sure what you mean by " law enforcement activities outside of the executive branch are marginalized" ( I'm not actually sure there are any law enforcement activities outside of the executive branch to begin with) , but in any event , what "unitary executive" means is that executive power is vested in a single office (president, governor etc ). Whether it's strongly or weakly unitary, it's the opposite of a plural executive system, where other executives are independently elected - such as states where the AG, controller, Secretary of State , etc are elected rather than appointed by the governor. The thing is, though, you could still end up with a president who's essentially above the law- because even though a president couldn't fire an independently elected AG , he or she would still act in a way that wouldn't harm the chances of re-election.

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Old 09-23-2019, 07:52 PM
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( I'm not actually sure there are any law enforcement activities outside of the executive branch to begin with)
I think str8cashhomie was referring to either state<->federal law enforcement cooperation or federal contractors behind the scenes.

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Old 09-23-2019, 08:38 PM
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Originally Posted by doreen View Post
I'm not sure what you mean by " law enforcement activities outside of the executive branch are marginalized" ( I'm not actually sure there are any law enforcement activities outside of the executive branch to begin with) , but in any event , what "unitary executive" means is that executive power is vested in a single office (president, governor etc ). Whether it's strongly or weakly unitary, it's the opposite of a plural executive system, where other executives are independently elected - such as states where the AG, controller, Secretary of State , etc are elected rather than appointed by the governor. The thing is, though, you could still end up with a president who's essentially above the law- because even though a president couldn't fire an independently elected AG , he or she would still act in a way that wouldn't harm the chances of re-election.
Sorry to be unclear. The main thing I mean is giving more law enforcement powers to congress and the marshalls which I believe act independently of the DOJ (but I could be wrong/have an incomplete understanding of that).

I think the state vs. federal thing is tough, because a single state arresting high-ranking federal officials would get hairy pretty quick.

I personally think the pluralistic executive branch, where different officials are elected separately could easily lead to more brinkmanship in US politics as you say. Additionally, under "normal circumstances" it would undermine some things I like about our system. For example I think the presidential veto makes a lot of sense because it avoids cases where a bill narrowly passes congress and the president doesn't like it and will undermine it at every turn. Vetoes mitigate the problem of having laws that are backed up by so much uncertain enforcement that no one knows what the de facto law really is. I realize the irony of saying this when it happens so frequently in our system, but personally I think it would get even worse in the case where some officials had a ton of executive power without any say in legislation.
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