My speculation is that if Trump takes office, all trials against him will be suspended until he leaves office.
On the other hand, with modern technology it just might be possible for an individual to carry out the duties of the Presidency from within a prison cell.
The whole “only the senate can remove a president” overlooks the ability of a majority of the cabinet with the VP to do so… (temporarily) Apparently, no matter how hard he protests?
The Vice President and a cabinet majority can temporarily replace the President. But Congress can overrule them if the President protests.
Someone has to have written a novel where the whole cabinet is willing to do exactly that, but, oopsie, there’s no VP at the moment…
It’s interesting that if the Vice President leaves office, the only way he can be replaced is for the President to nominate a replacement (who must be approved by Congress). So if the President declines to do so, then the office of the Vice President remains vacant. Which means there’s no Vice President to invoke the 25th Amendment and declare the President unable to carry out his duties.
I would speculate that if it came to this point, Congress could declare that failing to name a replacement Vice President is an impeachable offense and remove the President from office.
Hell, maybe we could just establish tossing the President in jail as soon as they take office as a new tradition.
“And now, as the Chief Justice of the Supreme Court finishes administering the Oath of Office, we see the Ceremonial Police Squad preparing to taser and pepper-spray the new President, before loading him into the back of Paddy Wagon One. We expect to have mugshots for distribution to all the DC inaugural balls by 3PM.”
But it’s still just an argument. As the saying goes, “there’s really only one way to find out.” I hope we never do. After all, the same applies to any officer that can only be removed by imeachment - judges… They can still be arrested and tossed in jail, being impeachable does not defend against doing time. One can speculate what happens if, say, a SCOTUS judge failed to report income and gifts on the appropriate form according to the law and so was conviceted and sentenced…?
As for the “nobody else can do it…” the VP (or in her absence, speaker of the House) can do it. The only argument that seems valid is that as supreme head of the executive branch, including the DoJ, the president would essentially be prosecuting himself - something that makes no sense - in any federal trial.
This is similar to the argument that the government (as a whole) has certain powers inherent to being a government that the Constitution doesn’t mention. For example, practically nobody these days would blink an eye over the US government buying property from another nation. And yet, when the Louisiana Purchase was being discussed, some people felt that it was unconstitutional, because the Constitution does not explicitly say that the government has the authority to buy land from another nation.
At this point, pretty much everybody feels that such power is inherent in the nature of being a sovereign nation, and therefore such actions are entirely constitutional. I would suggest that how you feel regarding this issue would be useful in deciding how you feel about the previously-mentioned incidental powers.
Interesting issue. But then, that was a different time. Apparently, “We the people” had no problem with the concept of a government simply taking land because you were first (or strongest) to claim it, won it in a war - the European empires did that all the time. Plus, it was an era where there was land there simply for the taking (whether the local indigenous peoples agreed or not) and there were vast unclaimed or barely claimed stretches out there, unoccupied by large populations. France may have claimed Montana or Colorado, but basically it was hard to tell - there was Louisiana and a few trading forts.
I suspect the real issue with the Purchase was separation of powers. The federal govrrnment was given certain powers, and the rest belonged to the states. Expansion of the realm appears not to have made the list. I can see where some states might have said expansion was their right, not Washington’s - States RIghts!! (Remember those old maps that showed the 13 states extending their boundaries westward to the Mississippi?) The USA should expand only because those sovereign member states expanded. Obviously they lost the argument.
Which rotates us back to the central argument - what is the power of state vs. federal govenment if there’s a standoff? And the answer is, in this case we don’t know until the Supreme Court rules about it.
I thought that judges appointed by Trump were specifically chosen for their right-wing views (e.g. on abortion) and not for any particular legal prowess.
Kavanaugh was according to tin-hat allegations a deal between Kennedy and persons unknown - “If I retire today, I want him to succeed me.” As I understand Brett articled for him at one time. Coney was a Professor of Law at Notre Dame. Gorsuch (also Harvard, and one-time assistant AG) had a pedigree as a long-time federal judge, he wasn’t picked out of obscurity. Also allegedly, McConnell was instrumental in selecting numerous judges, based on lists compiled by a right-wing lobby group.
Even Kavanaugh is a Yale lawyer, and was part of Starr’s impeachment investigation of Bill Clinton and a federal judge on the DC circuit. He’s no dummy - it’s just hard to tell… The latest Supremes may have been chosen in part for their consevative views - obviously a criteria for those nominees - but unlike Bush’s choice of Harriet Miers, these were well qualified for the job. And to reiterate - as people well aware of their capabilities and set for life, they don’t need to be syncophants to anyone. They do what they want, and (we hope) have a decent moral compass - well, most of them.
(The story goes that when Dick Cheney was helping Bush’s campaign, he was tasked to find a list of VP candidates. He supposedly told Bush, “I’m as good as any of these choices - pick me.” Harriet was inspired by this story to tell Bush when an opening appeared on the Supreme Court, “pick me.” (“The force can have a strong influence…” etc.) Apparently, both parties in the senate recognized the lack of critical thinking skills, not to mention experience, and she withdrew.)
Interesting point I saw in the media - now that he’s indicted, Trump is alleged to have had 6 unindicted co-conspirators. While these persons can be compelled to be witnesses against Trump, they still have fifth amendment rights if they have no immunity deal. While pleading the fifth cannot be held against a witness themselves in other proceedings should they face their own trial, can their pleading the fifth be considered against another person who is the one on trial?
I don’t see how. First, there’s no guarantee the self incrimination the witness is avoiding has anything to do with the defendant’s case, and you’re not allowed to infer such.
In US criminal jurisprudence, non-self-incrimination is absolutely never evidence.
Tell that to the OJ jury!
Are you imagining a situation where the Government calls the co-conspirator as a witness; asks him questions that would tend to incriminate the witness and the defendant (i.e., “Did you engage in a criminal conspiracy with this defendant?”); the witness invokes his right not to answer; and the Government argues to the jury that the invocation by the witness is evidence of the defendant’s guilt?
Almost certainly not allowed. In Namet v. United States (1963), the Supreme Court concluded that, while it was in inherently error to call a witness you know was going to invoke the Fifth Amendment, it was likely error in two circumstances: (1) as a form of prosecutorial misconduct (“when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege”) or (2) where, in a certain case, “inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.”
It seems to me that you’d be describing both circumstances.
Edit: Namet seems to frame this is merely an evidentiary concern (not a constitutional concern), but I would think that there were significant Sixth Amendment issues at play in such a situation.
Interesting, thank you!
Does the prosecutor have to know the witness will invoke the fifth, or should they be expected to make the logical inference themselves? Presumably then, everyone who goes on the witness stand with any obvious taint should either have some immunity or already be convicted? How would that work, would no witness be allowed to testify and plead the fifth lest it corrupt the trial process? What’s the point of the fifth, or is it just for grand juries?
Namet dealt specifically with a witness who indicated his intention to invoke prior to being called. And, I think, practically speaking that is how it is often going to go. Either the counsel for the witness or counsel for the defendant will raise the issue pre-trial. And the judge is likely to have to figure out (perhaps with an evidentiary hearing) outside the presence of the jury.
I would think that the “prosecutorial misconduct” theory would require the prosecutor to know (and to knowingly exploit) the invocation. The “circumstance of the case” theory seems like it could just develop. But the prosecutor is unlikely to call a witness when he doesn’t know what the witness will say.
The point of the Fifth Amendment is that the witness doesn’t have to self-incriminate. In this situation, the easiest way to handle the potential prejudice to the defendant is to not force the witness to testify at all (or to preclude questions that would result in the invocation). If the Government is faced with either violating the witness’s Fifth Amendment rights or the Defendant’s Sixth Amendment rights, then too bad for the Government.
Edit: I’m not sure that giving the witness immunity or convicting them is necessarily the solution. An invalid invocation of the Fifth Amendment could end up prejudicing the Defendant’s rights as well. I actually think there is some case law on that.
Interesting, thanks.
I was just wondering how this would apply, for example, in a case with unindicted co-conspirators. Apparently they are still at risk of becoming indicted in future, and therefore should not say anything incriminating. But the jury will surely notice “you said the defendant conspired with X, but we haven’t heard from X”. (Other than text and email transcripts)
Yes, the fifth amendment, as I understood, arose from the tendency of European monarchies to compel confessions, often with the help of tools or indefinite incarceration, and the bonus perjury trap…
I don’t know if a jury would expect to hear from a co-conspriator/co-defendant. They may wonder why those people haven’t been indicted (and, in many cases, the answer is going to be because they are cooperating and the jury will hear from them).
But, in our system, most of these dilemmas are going to get resolved in favor of giving the defendant a fair trial.