Can a sitting president be indicted without being impeached?

[Lemur866]

@ElvisL1ves

What happens if the President is impeached and removed, then tried, and acquitted? Does he get the Presidency that We the People voted him into back? No. That would be in effect *sentence * first, trial later, as well as a usurpation of democracy itself by Congress.
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But impeachment isn’t “punishment”, all congress can do is remove the official from office. It isn’t a usurpation of democracy by Congress since congress is itself democratically elected. Is the appointment of–say–a Supreme Court Justice a usurpation of democracy because they aren’t democratically selected?

If the official is impeched, removed, tried and accquitted it means nothing. Conviction or accquital in a criminal case have different standards than impeachment. An official could be convicted of a crime but not impeached, or accquitted of a crime and impeached, in whichever order. Just because the official was later accquitted of the crime they were accussed of doesn’t mean they were wrongly impeached. O.J. Simpson was accquitted of murder, that doesn’t mean he shouldn’t have been impeached and removed if he had been President at the time.

[ElvisL1ves]

@Lemur866

But impeachment isn’t “punishment”, all congress can do is remove the official from office.

Sure it’s punishment - of the official, by firing him, and of the people who hired him by nullifying their choice.

It isn’t a usurpation of democracy by Congress since congress is itself democratically elected.

In theory, yes, but in practice baser sentiments and misuse of power have to be guarded against as well. We’ve already seen a case of a President being impeached solely by the opposition party, in a lame-duck session after several of the voters had already been fired for saying they’d do it, with no Speaker, against the people’s wishes, after the leadership had removed censure as an option, out of pure personal spite. You don’t think that was even a partial usurpation of democracy? Or that some protection against recurrence of that problem is warranted?

Just because the official was later accquitted of the crime they were accussed of doesn’t mean they were wrongly impeached.

If that was the basis for the impeachment, if you’re using the concept that it’s part of the legal system, then yes, it follows. The acquitted get their names officially cleared. If you recognize that impeachment is strictly a political process instead, then it doesn’t actually matter if criminal charges even exist.

[toadspittle]

@SuaSponte

This is the reason that Nixon was named an “unindicted co-conspirator” in the indictments of his underlings due to Watergate and is (likely) why Starr didn’t indict Clinton for perjury.

I’ve heard this term a lot over the last few days. Can someone give a quick definition of “unindicted co-conspirator” and how it differs from being named as an inidicted co-conspirator? What penalties, etc., if any, attach?

[ElvisL1ves]

Um, yeah, a quick Googling shows a lot of people other than Presidents who’ve been named “unindicted co-conspirators”. Is that anything more than “We think you did something, but either we can’t prove it or it was trivial, so we’re just going to defame you instead”?

[ElvisL1ves]

Ah, here it is.

A co-conspirator is someone prosecutors believe entered into an agreement with at least one other person to break the law. Being unindicted just means the person hasn’t been charged with a criminal offense. Co-conspirators can be unindicted for several reasons: They may be cooperating witnesses for the prosecution, or the government may not have enough evidence to convict them. Or they may be charged in another case. Or, as in the case of the hijackers, they can be dead, forgoing the need for an indictment. (Or, as in the case of Richard Nixon, they may be the president, and there may be doubt that a sitting president can be indicted, so you defer the matter to Congress.)
…
So why name them on the indictment? Probably because the prosecution will want to use out-of-court statements made by the co-conspirators. Normally, out-of-court statements are considered hearsay. But under the federal rules of evidence, a statement is not hearsay if it is made “by a coconspirator of a party during the course and in furtherance of the conspiracy”.

[Lemur866]

@ElvisL1ves

If that was the basis for the impeachment, if you’re using the concept that it’s part of the legal system, then yes, it follows. The acquitted get their names officially cleared. If you recognize that impeachment is strictly a political process instead, then it doesn’t actually matter if criminal charges even exist.

I agree that impeachment is a political process, which is why a later criminal accquital or conviction doesn’t neccesarily validate or invalidate the impeachment proceedings. Of course an impeachment can be carried out wrongfully or stupidly. But since different rules apply to impeachments, criminal trials, and civil trials, I wouldn’t be upset if a trial held under one set of standards doesn’t match the result of a trail held under other standards. Congress operates under some constraints with regards to impeachment, but ultimately “high crimes and misdemeanors” means whatever a majority of the House says it means, and Congress is only answerable to the voters next election.

If we imagine a president facing impeachment, a criminal indictment, and a civil suit, all over the same alleged actions, we have a matrix of 8 possible results. I don’t think I could state that some of those results must always be evidence of injustice. Of course they may very well be unjust in any one particular case, people can be impeached unfairly or not impeached despite gross malfeasance, people can be convicted of crimes they didn’t commit or accquitted of crimes they did commit, and people can be held liable for civil actions they weren’t responsible for or be judged not liable for things they actually were responsible for.

I just don’t think that later criminal accquital must always mean that an earlier impeachment was therefore unjust. Lots of people are accquitted. Lots of people are rightly acquitted even though they actually did the things they were accused of, because the prosecution was unable to prove their case. Accquital doesn’t mean you didn’t do it, it just means that you don’t go to jail. Yes, the legal system is obligated to act as if accquital means that you’re innocent and rightly so, but this is a legal fiction.

[Zoe]

And Nixon was just one of many unindicted co-conspirators named in the Watergate scandal.

[alphaboi867]

@Blalron

I understand what you are trying to say, but I think the President is afforded way more consideration in our constitutional system than the Vice President. Any attempt to arrest a sitting President is going to cause a major constitutional crises. The President actually has to lead an entire branch of government. Realistically, the Vice President is just there on standby in case the President kicks the bucket and doesn’t have to do anything else.

Sooner or later some President is going to be in a position where it is blatantly obvious he needs to be arrested (hypothetical: he stabs the First Lady to death with an ice pick or something) and then as the FBI or whatever tries to beat down his door he scribbles on a cocktail napkin:
“I, President John Smith, hereby pardon President John Smith for any crimes he may have committed” :smack:

That would only work if he kill the First Lady in the District of Columbia. The President can only pardon for federal crimes, murder is usually a state crime (even when it’s a federal crime it’s also a state crime). Since no President has ever tried to pardon himself there’s no precedent. Can the President verbally pardon someone or does it have to be in writing? If it must be verbal then in an extreme scenario Secret Service agents could restrain the President (& keep him away from paper) long enough for the VP to convene the Cabinet and invoke the 25th.

[SuaSponte]

@alphaboi867

That would only work if he kill the First Lady in the District of Columbia. The President can only pardon for federal crimes, murder is usually a state crime (even when it’s a federal crime it’s also a state crime).

Yes and no. A President only has the power to pardon federal crimes, but states may not prosecute a pardoned individual if the state crime is essentially the same as the pardoned federal crime.

President’s pardon power extends beyond federal consequences to include consequences imposed by a state. This question was addressed by the Supreme Court in Carlesi v. New York, 233 U.S. 51 (1914). In Carlesi, the Court was asked to determine whether the fact that the plaintiff had received a presidential pardon for a federal offense prevented a state from treating the plaintiff as a “second offender” for the purposes of punishment for a subsequent state offense. Writing for a unanimous Court, Chief Justice White stated:

It may not be questioned that the States are without right directly or indirectly to restrict the National Government in the execution of its legitimate powers. It is therefore to be conceded that if the act of the State in taking into consideration a prior conviction of an offense committed by the same offender against the laws of the United States despite a pardon was in any just sense a punishment for such prior crime, that the act of the State would be void because destroying or circumscribing the effect of the pardon granted under the Constitution and [the] laws of the United States.

Id. at 57. Ultimately, the Court concluded that the state was not seeking to impose additional punishment for the pardoned offense, but rather had made the conduct underlying that offense an aggravating circumstance for purposes of determining the punishment for the second offense. See id. at 59. However, it is clear from the above-quoted passage that if the Court had determined that the state was attempting to punish or penalize the offender for the pardoned offense, the state’s action would have been a violation of the Constitution. At least one federal court of appeals has expressly adopted this position. In Bjerkan, the Seventh Circuit, relying on the Court’s dicta in Carlesi, held that “a presidential pardon restores state as well as federal civil rights.” 529 F.2d at 129. The court stated that once a federal offense has been pardoned, any “attempted punishment [by a state] would constitute a restriction on the legitimate, constitutional power of the President to pardon an offense against the United States and would be void as circumscribing and nullifying that power.” Id. at 128.

Sua