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Old 11-04-2019, 11:36 AM
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Impeachment sentencing question.


Just the facts, so I chose General Questions.

Hypothetical : A President is impeached for a crime that would get an ordinary Joe a few years in Prison. The case is absolutely air tight.

What happens if the VP/incoming President does not pardon? Does a sentence get handed down? From who? I guess it would fall to the Chief Justice that presides over the Senate trial?
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Old 11-04-2019, 11:55 AM
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Impeachement and conviction by the senate has only one penalty: removal from office (and optionally, disqualification from holding future office.) But, it does not provide any sort of immunity against being prosecuted criminally or civilly for the crime for which the person was impeached.

It goes the other way, too. If you're impeached but acquitted, you can still be prosecuted criminally (but it would be after you left office.)
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Old 11-04-2019, 12:14 PM
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Impeachement and conviction by the senate has only one penalty: removal from office (and optionally, disqualification from holding future office.) But, it does not provide any sort of immunity against being prosecuted criminally or civilly for the crime for which the person was impeached.

It goes the other way, too. If you're impeached but acquitted, you can still be prosecuted criminally (but it would be after you left office.)
Thanks. So a new trial. Could a new trial be held for the same things he/she was impeached for? Or would it have to be different crimes?
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Old 11-04-2019, 12:24 PM
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The Senate procedure after impeachment by the House isn't a criminal trial. It has some of the trappings of a trial, but it is not actually a criminal/judicial procedure. The Constitution specifies that the President (and other Federal officials) may be removed for "High Crimes and Misdemeanors", but never defines what those terms mean. In practice, it's up to the House and the Senate to define for themselves what they think are sufficient grounds for impeachment and removal from office, respectively.

As Kent Clark indicated, an impeachment and removal from office, on the one hand, and a criminal trial, on the other, are two completely separate processes that have absolutely no bearing on each other. (Other than, as Kent Clark also indicated, it's generally accepted that a sitting President can't be charged and tried for crimes while in office).

A President could be impeached but not removed from office and then tried for crimes after leaving office. A President could be tried for crimes after leaving office without even being impeached. A President could be impeached and removed from office and then tried for crimes. A President could be impeached and removed from office and not be tried for crimes afterwards. A President, in theory, could be impeached and removed from office for conduct that isn't actually criminal.
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Old 11-04-2019, 12:27 PM
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What happens if the VP/incoming President does not pardon? Does a sentence get handed down? From who? I guess it would fall to the Chief Justice that presides over the Senate trial?
And also the Constitution specifically does not allow the President to pardon anyone from impeachment.
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Old 11-04-2019, 12:34 PM
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Thanks all, that's clearer for me.
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Old 11-04-2019, 12:46 PM
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Since the question has been adequately answered I am going to throw in my opinion. If the president were to randomly shoot someone on 5th ave (and not in self defense) I still believe that he would be arrested and tried in the same way as any other person. Neither the constitution nor any statute law I am aware of confers blanket immunity from prosecution on the president.
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Old 11-04-2019, 12:59 PM
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Agreed. Especially since it would be a matter of NY state criminal law, not federal law.

I can't imagine that the Founders thought that they were getting rid of George III and replacing him with a new monarch, absolutely immune from the criminal law.
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Old 11-04-2019, 01:35 PM
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Since the question has been adequately answered I am going to throw in my opinion. If the president were to randomly shoot someone on 5th ave (and not in self defense) I still believe that he would be arrested and tried in the same way as any other person. Neither the constitution nor any statute law I am aware of confers blanket immunity from prosecution on the president.
And I've speculated before that the 25th Amendment would be invoked in such a situation based on argument that a President would be unable to discharge the powers and duties of his office while under arrest. So the Vice President would act as President through the course of the trial.
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Old 11-04-2019, 01:37 PM
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Has there been a determination whether evidence that is presented during an impeachment hearing is admissible during a later criminal trial related to the same acts?
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Old 11-04-2019, 01:55 PM
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Since the question has been adequately answered I am going to throw in my opinion. If the president were to randomly shoot someone on 5th ave (and not in self defense) I still believe that he would be arrested and tried in the same way as any other person. Neither the constitution nor any statute law I am aware of confers blanket immunity from prosecution on the president.
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Agreed. Especially since it would be a matter of NY state criminal law, not federal law.
I'm going to disagree. I tend to agree with Joseph Story's view that "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, without any obstruction or impediment whatsoever. The President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office."

It's never been tested, of course. Although, I would read both Nixon v. Fitzgerald and Clinton v. Jones as accepting (almost as a given) Story's conclusion and then attempting to determine the limits of that principle. (The Clinton case also includes, in Breyer's concurrence, references to statements by John Adams and Thomas Jefferson that would seem to offer a theory of presidential immunity that goes beyond the modern notion).

And, I think that concern is amplified when you're dealing with state criminal law. It is easy to imagine (and, I think, easy for the founders to imagine) where (for political reasons) a local grand jury decides to indict a sitting president on frivolous charges. Granting the president immunity from such things while he is in office (and, of course, giving Congress the ability to remove him) seems pretty sensible.
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Old 11-04-2019, 03:44 PM
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It is also worth mentioning that there has been a case in history of a President being arrested on a federal criminal offense while in office. President Grant was arrested for speeding.

Perhaps significantly, he did not contest the charges. If he had, then we would have had some very interesting court conclusions.
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Old 11-04-2019, 04:17 PM
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Has there been a determination whether evidence that is presented during an impeachment hearing is admissible during a later criminal trial related to the same acts?
What? I didn't know that there was ever a question about this.

Certainly evidence presented in a Federal criminal court case can then be used in a state court; and evidence used in a criminal court can then be used by litigants suing you for damages in a civil case.

Even if a defendant is tried again for the same crimes (after a hung jury in the first trial), that same evidence can be used again in a second trial.

About the only time evidence can't be used again is if the person was acquitted by the jury in the trial. Even then, there is a rather big loophole: a person can be acquitted of murder (a state crime) by a state court jury, but then be tried again in a Federal court for another criminal charge stemming from the same act, like 'depriving them of their federal rights'. Examples of this were racist white bombers of black churches, who were acquitted by all-white southern juries, but then convicted (years later) in federal court.
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Old 11-04-2019, 05:27 PM
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I think the point is - the "trial" in the senate is entirely a creature of the senate - they set the rules, they determine the process. What is admissible in court is already rigorously defined. It is entirely possible that the senate may allow evidence (hearsay) that is inadmissible in court. It's entirely possible that the senate may refuse to hear / refuse to allow some evidence that a court may find admissible. There is also the risk - as in any trial - that having heard what everyone else says during impeachment, witnesses may use this to "coordinate" their stories for a criminal trial.

But evidence is not "use once and throw away". It is FACTS, therefore continuously good based on what its origins are.

Also, lets pick a hypothetical - say the president is accused of something and the evidence is semen stains on a blue dress. The dress is taken and tested by the people employed by the senate. When it comes to a criminal trial later - DNA evidence must have a chain of custody, and be properly logged at each step. If the people handling the item for the senate were careless, it may fail admissibility criteria for a criminal trial and be excluded. (In fact, they'd probably use the FBI whose procedures are meticulously mandated by their procedures manuals, so not likely)
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Old 11-04-2019, 06:43 PM
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What? I didn't know that there was ever a question about this.

Certainly evidence presented in a Federal criminal court case can then be used in a state court; and evidence used in a criminal court can then be used by litigants suing you for damages in a civil case.

Even if a defendant is tried again for the same crimes (after a hung jury in the first trial), that same evidence can be used again in a second trial.

About the only time evidence can't be used again is if the person was acquitted by the jury in the trial. Even then, there is a rather big loophole: a person can be acquitted of murder (a state crime) by a state court jury, but then be tried again in a Federal court for another criminal charge stemming from the same act, like 'depriving them of their federal rights'. Examples of this were racist white bombers of black churches, who were acquitted by all-white southern juries, but then convicted (years later) in federal court.
It was certainly a factor when I was working. If I was conducting a disciplinary hearing on a prisoner, nothing that was presented at the hearing was admissible at a possible later criminal trial.

Let's say, for example, that a prisoner was found with some cocaine in his cell. And we charged him with a violation of prison rules (prisoners are not allowed to possess illegal drugs). And I do a hearing and sentence him to ninety days in special confinement.

That same prisoner could then face criminal charges. The DA in the county where the prison is could charge him with criminal possession of cocaine and have a regular trial.

These are two separate legal procedures resulting from the same cause. We have lower legal standards at the disciplinary hearing. (For example, they let somebody like me conduct the hearing.) So a prisoner might admit to something at the hearing (where he doesn't have a lawyer) that would be incriminating evidence at a criminal trial.

To protect the legal rights of the prisoner at a regular trial, nothing that happened at a disciplinary hearing can be used as evidence. So the prisoner could tell me that he was just holding the cocaine for a friend and then at his trial he could deny he ever had any cocaine in his cell. And the DA cannot call me as a witness or use his testimony at the disciplinary hearing to contradict his testimony at the trial.

This also allows the prisoner to present his best defense at his disciplinary hearing because he doesn't have to worry if anything he says will later be used against him at a criminal trial.

I was wondering if a similar principle applied during an impeachment. If a President is being impeached on the basis that he allegedly committed some crime, can he present his best defense at the impeachment trial if he also has to be concerned that what he says might be used against him at a later criminal trial?

Last edited by Little Nemo; 11-04-2019 at 06:44 PM.
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Old 11-04-2019, 09:54 PM
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If you are questioning a prisoner without the option of a lawyer, and compelling him to answer (or suffer consequences) and the prison administration is an arm of the government - then no surprise if the results are not considered admissible in court.

Curious how this scenario plays out with, say, police board disciplinary hearing. Does it have trhe same restrictions? This might be more analogous to impeachment - the officer is subject to discipline up to and including loss of employment; plus it is possible sometimes criminal charges could follow on.
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Old 11-05-2019, 01:32 AM
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And I've speculated before that the 25th Amendment would be invoked in such a situation based on argument that a President would be unable to discharge the powers and duties of his office while under arrest. So the Vice President would act as President through the course of the trial.
If that actually happened, I'm almost certain that some lawyer somewhere would argue that the President would have to be restored to full powers and duties before he could be impeached. If he's not enough of a President to exercise the duties of the office, he's not enough of a President to face the consequences of the office, either.
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Old 11-05-2019, 01:57 AM
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If that actually happened, I'm almost certain that some lawyer somewhere would argue that the President would have to be restored to full powers and duties before he could be impeached. If he's not enough of a President to exercise the duties of the office, he's not enough of a President to face the consequences of the office, either.
I disagree. Under the 25th Amendment, the Vice President is only acting as the President until the real President can resume his office. It's only a temporary suspension from office. An impeachment is still required if Congress is seeking to permanently remove the President from office.
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Old 11-05-2019, 02:01 AM
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If you are questioning a prisoner without the option of a lawyer, and compelling him to answer (or suffer consequences) and the prison administration is an arm of the government - then no surprise if the results are not considered admissible in court.
Prisoners are not allowed to have lawyers (or other representatives unless you count a translator) at a hearing. But they are not compelled to answer any questions or even speak at the hearing. They can remain silent without penalty. And they're explicitly informed of this right. (I once had to testify to this point at a trial.)
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Old 11-05-2019, 10:09 AM
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But in your hypothetical, the cocaine would still be admissible in the criminal court, correct? Wouldn't it just be statements at the discipline hearing that are inadmissible?
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Old 11-05-2019, 10:12 AM
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I'm going to disagree. I tend to agree with Joseph Story's view that "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, without any obstruction or impediment whatsoever. The President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.".
Was Joseph Story facing the hypothetical of a President bragging he could commit murder and get away with it?
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Old 11-05-2019, 10:14 AM
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Curious how this scenario plays out with, say, police board disciplinary hearing. Does it have trhe same restrictions?
Garrity case.
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Old 11-05-2019, 01:37 PM
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But in your hypothetical, the cocaine would still be admissible in the criminal court, correct? Wouldn't it just be statements at the discipline hearing that are inadmissible?
Yes, anything that didn't arise from the disciplinary hearing would be admissible.
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Old 11-05-2019, 02:12 PM
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Has there been a determination whether evidence that is presented during an impeachment hearing is admissible during a later criminal trial related to the same acts?
If the testimony is gotten thru a sort of Grand jury proc, with the witness forced to testify under limited immunity, then no that cant be used.
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Old 11-05-2019, 04:53 PM
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Was Joseph Story facing the hypothetical of a President bragging he could commit murder and get away with it?
Yes, I can see both sides of this issue. On the one hand, it would be easy to paralyze a President by just filing a string of frivolous lawsuits and arrests against him against him, making it impossible for him to perform his job. So granting the President a shield of immunity during his term of office makes sense.

On the other hand, I don't think anybody sees an advantage in granting the President a right to go on a four year crime spree. Even if you figure he would still face the consequences after leaving office, society still has an interest in preventing the crimes from happening. There's the example already mentioned of murder; if the President started committing a series of murders, we couldn't allow him to continue to kill people unchecked for four years.

I don't see how you can craft a form of immunity that would protect a President from frivolous legal action but still make him subject to legitimate legal action. The distinction between what's frivolous and what's legitimate is too subjective.

So I guess the best workable solution is to grant all Presidents a broad shield of immunity during their terms of office - but use impeachment to remove a particular President from office if he abuses that immunity. And on that basis, I would generally prohibit the use of Presidential immunity in a way that interferes which the impeachment process. Immunity should check arrests and lawsuits but impeachment should check immunity.
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Old 11-05-2019, 06:43 PM
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So 34 Senators can shield a president from murder charges?
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Old 11-05-2019, 07:06 PM
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So 34 Senators can shield a president from murder charges?
Unfortunately, yes. The past few years have underscored that the proper operation of government requires officials to act in good faith. Removing discretion and judgment from officials in an attempt to limit the interference caused by bad faith activity only creates a new system that can be abused. Itís a no-win situation
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Old 11-07-2019, 10:09 PM
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I disagree. Under the 25th Amendment, the Vice President is only acting as the President until the real President can resume his office. It's only a temporary suspension from office. An impeachment is still required if Congress is seeking to permanently remove the President from office.
You disagree that at least one lawyer in a major case would make a potentially questionable argument?
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Old 11-07-2019, 10:20 PM
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I disagree. Under the 25th Amendment, the Vice President is only acting as the President until the real President can resume his office. It's only a temporary suspension from office. An impeachment is still required if Congress is seeking to permanently remove the President from office.
I actually asked a question here a couple hours ago about an acting president without realizing this thread was here (I asked because of a TV show).

But the answers were relevant:

An acting president IS the president. Period. Full stop.

The previous president, when able, submits a petition to resume the office which is automatically accepted unless others object and then a process starts.

But until the previous president submits a formal, "Good to go," form the acting president IS the president of the United States.
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Old 11-07-2019, 11:31 PM
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The 25th refers to the Veep in these circumstances as the Acting Presidnet, not the Preident.

And there is no provision under the 25th for anyone other than the Veep to act as prez under the 25th.

If both the Prez and Veep are
Missing or incapacitated, it's the presidential succession act which governs, and only until such time as the disability is removed or a new Prez us elected.
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Old 11-07-2019, 11:47 PM
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The 25th refers to the Veep in these circumstances as the Acting Presidnet, not the Preident.

And there is no provision under the 25th for anyone other than the Veep to act as prez under the 25th.

If both the Prez and Veep are
Missing or incapacitated, it's the presidential succession act which governs, and only until such time as the disability is removed or a new Prez us elected.
Err...so Pres and VP are on Air Force One and they do an Amelia Earhart impersonation.

You are saying the 25th is out the window and then the Speaker of the House is a seat warmer till we figure out what is going on?

It would seem to me the 25th should apply no matter how far down the chain of succession you go. If not then what happens?
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Last edited by Whack-a-Mole; 11-07-2019 at 11:48 PM.
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Old 11-08-2019, 12:12 AM
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Look at the key words of the 25th:

Quote:
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
It can only be triggered by the Veep, acting with the Cabinet "or such other body", and it only authorizes the Veep to assume the duties of the office. It doesn't authorize anyone else to assume the powers and duties as Acting President.

So that means that if both the PRez and Veep are both MIA, the provisions of Article II would govern:

Quote:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
That in turn points to the Presidential Succession Act, which puts the Speaker in on a termorary basis (assuming that provision is itself constitutional, and the Speaker is an "officer" for the purposes of this section.
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