"Executive vs Legislative" VS "Executive vs Judicial"

[Max_S]

@Hamlet

I don’t find the difference between a federal civil case (Jones v. Clinton) and a state level civil case, to be of any real difference. It’s not like a federal civil case will somehow be less intrusive than a state level case. YMMV, of course.

The only relevant difference is in the doctrine used to assert immunity. With federal courts, the doctrine is that of the separation of powers: each branch is co-equal. With state courts, the doctrine is that of federalism: sovereignty is shared between the states and the federal government.

The concern with federalism is very similar to the concern with co-equal branches. Are we going to leave the door open for states to threaten the President with civil contempt unless he cooperates with their agendas? What if the states serve the president with good-faith process, but the time it would take to comply would prevent the President from doing his job? Or, what if the public nature of open investigations into the President prevents the President from being an effective international diplomat, or from securing cooperation from the Congress? Do you realize that President Clinton and Newt Gingrich were one week away from announcing Social Security reforms before the Lewinsky scandal broke?

Another major difference is that the Vance case is criminal, not civil.

@Hamlet

An issue I have with this is that, in the Vance case at least, Trump doesn’t have to do anything at all. It’s a subpoena to Mazars, his accounting firm. As the court said: “The subpoena seeks only the President’s private tax returns and financial information relating to the businesses he owns in his capacity as a private citizen. These documents do not implicate, in any way, the performance of his official duties.”

Public perception affects the performance of the President’s duties, especially when it comes to his interactions with Congress. Also, the President needs to review the subpoenas to assert any rights he may have. You don’t pay an accounting firm to fight subpoenas tooth and nail, you pay them to do your taxes. The accountant is supposed to tell you when your records have been subpoenaed, and then it is on you, not them, to fight it out in court. See for example where Mazars refuses to participate in the case at all: https://www.supremecourt.gov/DocketPDF/19/19-635/131128/20200205163042112_Untitled.PDF

@Hamlet

I think there is a perfectly valid discussion to be had over the exact extent of presidential immunity against State actions. It would be absurd, to me, to allow any State to arrest the President or to be able to lock him up for contempt.

Then it’s not really a subpoena, is it? There would be no force behind the order.

@Hamlet

But I also believe that the Presidency doesn’t foreclose all possibility of investigation either.

Neither do I. One can still have an investigation without compulsory process, the immunity only lasts until the President is out of office, and the limitations period, if there is one, would be tolled until that time.

@Hamlet

How was the Court “proven wrong”? Clinton was able to continue to do his job as President while defending the lawsuit. The fact he committed perjury during it was his, and his alone, decision. A decision made, not as a President or implicating any Presidential powers, but as Bill Clinton

Did Bill Clinton commit perjury? He was acquitted. How many debates do you want to roll up in this?

@Hamlet

I, and I think the founders, don’t like the idea of a President above the law to such an extent that not only can’t he be prosecuted, you can’t even investigate him or anyone else around him. And I’m not sure whatever difference exists between filing a case in federal court or in state court is relevant to the determination of his abilities to do his job.

Don’t be silly, I don’t think federal prosecutors can investigate a sitting U.S. President for federal crimes, either.

~Max

[Hamlet]

@Max_S

The only relevant difference is in the doctrine used to assert immunity. With federal courts, the doctrine is that of the separation of powers: each branch is co-equal. With state courts, the doctrine is that of federalism: sovereignty is shared between the states and the federal government.

My question was more about the impact of the action on the President’s ability to do his job. If the concern is that an action would “prevent the President from doing his job” or “prevents the President from being an effective international diplomat, or from securing cooperation from the Congress”, does it really matter if that action is a subpoena from a state grand jury or a federal grand jury?

@Max S.

Are we going to leave the door open for states to threaten the President with civil contempt unless he cooperates with their agendas?

No, we won’t. Saying Presidential immunity does not extend to a subpoena for tax records kept by a third person that, in no way, interferes with a Presidential power, does not mean States can use any reason whatsoever to hold him in court.

@Max S.

What if the states serve the president with good-faith process, but the time it would take to comply would prevent the President from doing his job? Or, what if the public nature of open investigations into the President prevents the President from being an effective international diplomat, or from securing cooperation from the Congress? Do you realize that President Clinton and Newt Gingrich were one week away from announcing Social Security reforms before the Lewinsky scandal broke?

The Lewinsky scandal didn’t stop the President from doing his job. He was more than able to have done whatever job he needed. The fact an investigation has political repercussions that may change the way the President does his job is not a reason to stop an investigation.

@Max S.

Another major difference is that the Vance case is criminal, not civil.

I think that a criminal investigation would carry much more weight (in determining the value of the State’s action) than a civil one. It’s one thing to say that the President shouldn’t be required to spend time in court because he fired someone on TV and another to say that the President shouldn’t be required to help you in your criminal investigation despite the fact he has the information at his disposal. Stake are higher.

@Max S.

Public perception affects the performance of the President’s duties, especially when it comes to his interactions with Congress.

And yet we don’t say you can’t speak ill of the President because it makes his job harder to do.

@Max S.

Also, the President needs to review the subpoenas to assert any rights he may have. You don’t pay an accounting firm to fight subpoenas tooth and nail, you pay them to do your taxes. The accountant is supposed to tell you when your records have been subpoenaed, and then it is on you, not them, to fight it out in court. See for example where Mazars refuses to participate in the case at all: https://www.supremecourt.gov/DocketPDF/19/19-635/131128/20200205163042112_Untitled.PDF

I’m pretty sure Donald Trump hasn’t spent much of his own personal time dealing with those issues.

@Max S.

Then it’s not really a subpoena, is it? There would be no force behind the order.

Many subpoenas are “enforced” short of a jail sentence. I would think Presidential immunity extends to “not being taken to jail”, but not to “you can’t be punished in any way, shape, or form”.

@Max S.

Neither do I. One can still have an investigation without compulsory process, the immunity only lasts until the President is out of office, and the limitations period, if there is one, would be tolled until that time.

I’m unaware of any law allowing that. Is there one actually in effect now, or is this a “the way I would do it”.

@Max S.

Did Bill Clinton commit perjury? He was acquitted. How many debates do you want to roll up in this?

I have no interest in opening that can of worms (he did commit perjury, was fined and disbarred for it), but I only raised it to show it didn’t impede his ability to do his job. Hence, the ruling in Jones v. Clinton.

@Max S.

Don’t be silly, I don’t think federal prosecutors can investigate a sitting U.S. President for federal crimes, either.

Wow, that’s … something. Could you expand on that just a bit? How would that look? How would the Mueller investigation, Watergate, Iran Contra, etc. have been handled? And does it start once the President is elected, so the FBI could investigate Russian tampering to help Trump up until the point it actually worked, then they had to stop?

Seems to me that’s a huge increase in Presidential power.

[Max_S]

@Hamlet

My question was more about the impact of the action on the President’s ability to do his job. If the concern is that an action would “prevent the President from doing his job” or “prevents the President from being an effective international diplomat, or from securing cooperation from the Congress”, does it really matter if that action is a subpoena from a state grand jury or a federal grand jury?

I see. No, the impact would be identical.

@Hamlet

No, we won’t. Saying Presidential immunity does not extend to a subpoena for tax records kept by a third person that, in no way, interferes with a Presidential power, does not mean States can use any reason whatsoever to hold him in court.

Exposing someone to liability in court does open the door for that person to be sued for any reason.

@Hamlet

The Lewinsky scandal didn’t stop the President from doing his job. He was more than able to have done whatever job he needed. The fact an investigation has political repercussions that may change the way the President does his job is not a reason to stop an investigation.

Well, I just disagree in that I think political repercussions prevented President Clinton from doing his job. For instance, he had a secret agreement with Mr. Gingrich to reform social security, but that dissolved when the Lewinsky scandal surfaced.

@Hamlet

I think that a criminal investigation would carry much more weight (in determining the value of the State’s action) than a civil one. It’s one thing to say that the President shouldn’t be required to spend time in court because he fired someone on TV and another to say that the President shouldn’t be required to help you in your criminal investigation despite the fact he has the information at his disposal. Stake are higher.

A criminal investigation is also pointless if you can’t indict the subject. What exactly is the goal of the investigation if you aren’t trying to bring charges? We are talking about an investigation of the president himself, not some investigation of a third party where the President could help out.

@Hamlet

And yet we don’t say you can’t speak ill of the President because it makes his job harder to do.

This is because of the First Amendment which prevents Congress from passing any law that restricts the freedom of speech and press. A judge, for example, may not disparage the President.

@Hamlet

I’m pretty sure Donald Trump hasn’t spent much of his own personal time dealing with those issues.

Whereas I would not strike down an immunity because the subject has legal representation, and therefore may not be distracted by such minor things as a criminal investigation into his personal finances.

@Hamlet

Many subpoenas are “enforced” short of a jail sentence. I would think Presidential immunity extends to “not being taken to jail”, but not to “you can’t be punished in any way, shape, or form”.

Would you care to enumerate the various ways a court can enforce a subpoena duces tecum?

@Hamlet

I’m unaware of any law allowing that. Is there one actually in effect now, or is this a “the way I would do it”.

Tolling is not a matter of law, it is a matter of equity and thus effected by the courts. In the case of Vance, the president offered tolling of the limitations period while he was in office.

@Hamlet

I have no interest in opening that can of worms (he did commit perjury, was fined and disbarred for it), but I only raised it to show it didn’t impede his ability to do his job. Hence, the ruling in Jones v. Clinton.

Very well, then this specific line of argument falls flat.

@Hamlet

Wow, that’s … something. Could you expand on that just a bit? How would that look? How would the Mueller investigation, Watergate, Iran Contra, etc. have been handled?

None of the above were investigations into criminal acts by a sitting president, so they would have been handled exactly as they were handled.

@Hamlet

And does it start once the President is elected, so the FBI could investigate Russian tampering to help Trump up until the point it actually worked, then they had to stop?

The FBI could continue investigating Russian tampering to help Trump. Such an investigation targets Russians - it is distinct from one where the prosecutors investigate a sitting president for committing federal crimes.

~Max

[Hamlet]

@Max_S

Exposing someone to liability in court does open the door for that person to be sued for any reason.

Just like every other person in the US. Which is kinda the point. No one, not even the President, is above the law. ""although the President ‘is placed [on] high,’ ‘not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen and in his public character by impeachment’ " (quoting 2 Jonathan Elliot, Debates on the Federal Constitution 480). Remember, the President would still (likely) have immunity for his actions taken as President. He just would be responsible for his actions as a private citizen. Again, like everyone else in the US.

@MaxS

Well, I just disagree in that I think political repercussions prevented President Clinton from doing his job.

Absolutely. But, again, political repercussions from your own actions are separate from being sued for different actions taken as a private individual. And Clinton was being sued for his actions taken before becoming President and were in no way part of his presidential duties. Had Lewinsky sued, you might have a point. I don’t think he would have been able to be sued by her. But, again, the suit was for actions taken before and unrelated to, the Presidency.

@Max S.

A criminal investigation is also pointless if you can’t indict the subject.

Even accepting the idea that he couldn’t be indicted, that does not mean he even can’t be investigated. Unless you’re asserting he can no longer be subject to criminal investigation EVER, then the investigation could certainly bear fruit in the future. And that could even happen without an ounce of effect on his “doing his job”.

@Max S.

What exactly is the goal of the investigation if you aren’t trying to bring charges? We are talking about an investigation of the president himself, not some investigation of a third party where the President could help out.

It’s not like investigations only happen to one person at a time. Watergate. Iran Contra. Russian Interference. All involved multiple people, including, but not limited to, the President.

@Max S.

This is because of the First Amendment which prevents Congress from passing any law that restricts the freedom of speech and press.

And the Constitution grants a “right” to Congress to investigate and oversee the President.

@Max S

Whereas I would not strike down an immunity because the subject has legal representation, and therefore may not be distracted by such minor things as a criminal investigation into his personal finances.

I don’t see why, if the basis for this immunity is to protect someone’s ability to do their job, why it would be used when it doesn’t.

@Max S.

None of the above were investigations into criminal acts by a sitting president, so they would have been handled exactly as they were handled.

The FBI could continue investigating Russian tampering to help Trump. Such an investigation targets Russians - it is distinct from one where the prosecutors investigate a sitting president for committing federal crimes.

~Max

It your basis for immunity the “target” of the investigation? Because each and every example I gave had a wide variety of “targets”, including the President. “What did the President know and when did he know it” and all that.

This concept that not only can the President not be charged with a crime, but he can’t even be investigated, is a very scary concept indeed. One that, I am sure, Clinton, Nixon, Jackson, and the other Presidents would have loved to have known about.

[Hamlet]

Just an update: Back in July, the Supreme Court rejected Trump’s assertion of absolute immunity from criminal investigation. They remanded one of the cases (Trump v. Vance) back to the district court for further arguments on other issues.

Well, the District Judge issued his opinion, which can be found here. The court dismissed Trump’s motion to quash the subpoena. So, hopefully soon, the grand jury will have the information it needs to fully investigate these issues.

My favorite part of the opinion: “The Court also need not ignore that the President has now twice failed to present a valid cause of relief, despite guidance from the Supreme Court, which further counsels against allowing a third attempt at litigating the threshold validity of the Mazars subpoena.” Seems the court is tired of Trump’s bullshit legal arguments and delaying tactics. As are we all.

[ThisIsTheEnd]

@jebert

Is this the way it was meant to work, or is the US Constitution a flawed document?

It’s a flaw of people not the document. Everybody knows how it’s supposed to work.