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?
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?
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.
And also the Constitution specifically does not allow the President to pardon anyone from impeachment.
Thanks all, that’s clearer for me.
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.
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.
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.
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?
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.
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.
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.
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)
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?
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.
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.
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.)
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?