# Is DeLay going down?
**URL:** https://boards.straightdope.com/t/is-delay-going-down/298028
**Category:** Great Debates
**Created:** [April 6, 2005, 1:40pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028 "2005-04-06T13:40:00Z")
**Posts on this page:** 20
**Page:** 11
### Author:  [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)
#### Post date: [October 9, 2005, 12:23pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/201 "2005-10-09T12:23:06Z")
> [@elucidator](#):
>
> This would be harsh. I suggest a more moderate approach, such as removal from office to a sinecure more in line with his talents. He could own the Yankees, for instance.
Nah, Commissioner of Baseball. It’s a job that was made for him. Plenty of opportunities for cronyism, as Selig’s been busy demonstrating lately. That certainly plays to Bush’s strengths.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 9, 2005, 3:52pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/202 "2005-10-09T15:52:32Z")
> [@This Year's Model](#):
>
> But not against the constitution and not against any law. I’ll readily agree with you that it would create problems, and I like the idea of stepping aside temporarily (voluntarily or not), but the President is just another citizen, subject to the rule of law as are all of us.
The President is subject to the rule of law, as a general proposition, but he is NOT “just another citizen.” He is a constitutional officer. He embodies the Executive Branch.
Yes, I agree that arresting the President is not against any law, and not against the Constitution. But since the entire concept of judicial review is not created by the Constitution, I could just as well argue that Congress and the President were free to regard the Supreme Court’s opinions as advisory, not binding. The Supreme Court simply declared that it could review and strike down law. That system is now ingrained into our government, but ignoring it would not violate the written word of the Constitution – yet it would percipitate a Constitutional crisis.
The concept of arresting the President fits into that same category. It’s never been done. To do it would shake the foundations of our idea or separation of powers. Neither the legislative or judicial branch is embodied in one man – but the Executive is.
These problems could be solved, as I said, by first using the impeachment process to separate the man from the Executive. We have an orderly and defined process for that. Or we could somehow ensure that the President temporarily removes himself as the Executive, via the 25th Amendment, before indicting him. I don’t say there are no solutions. I _do_ say that indicting him without implementing some solution first would be extraordinarily unwise, of the same dimension as deciding that the Supreme Court’s opinions had no real force: not violative of any written law, but a REALLY bad idea.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 9, 2005, 4:22pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/203 "2005-10-09T16:22:16Z")
> [@ElvisL1ves](#):
>
> Exactly, and the Constitution provides that he is. You can argue its wisdom all you like, and I even agree with the reasons you describe, but it still is not what the law is (and isn’t it ironic that you’d be arguing against it?)
I acknowldge exactly this in the post above.
I’m not sure what point this admission proves. Certainly Starr’s action’s weren’t AGAINST the law. Yes, I agree that no law technically prevented him from directly indicting the President. But he could have felt, as we both do, that going down that path would be such an unwise idea that he chose not to do it. How does that help your position or hurt mine?
> [@](#):
>
> But why limit that to the chief executive? Can’t any official make that claim? Can’t anyone else say that his job is too important for him to be distracted with mere criminal law? I have to part ways with you. No one is above, or below, the law, or the system breaks down. In addition, do you really think that an impeachment proceeding is less of a distraction, less time-consuming, than a criminal one? Hell, even a criminal court provides protections for confidentiality etc. to prevent prejudice against him, and defamation of character, etc. - not so in an impeachment, eh?
Many officials could claim their jobs were important, sure. But no official except the president has a direct and singular Constitutional position. If the Secretary of Defense were indicted, a court may easily order him jailed. If the Secretary of State were indicted, a court may order him to surrender his passport and not travel. In each case, there is no Constitutional issue with the President appointing others to serve temporarily in their stead – they all serve at the pleasure of the President in any event. There is no Constitutional question raised when the Secretary of HHS is ordered to submit to the personal jurisdiction of the court.
Now, of course the impeachment process is equally distracting. But there are several significant distinctions: to indict a President, you need one prosecutor (elected or unelected) and three-fourths of a grand jury (unelected). To impeach a President, you need one half of the 435 US House of Representatives. The bar for impeachment is much higher.
Moreover – and this is the big one - it’s Constitutionally sound. Unlike the indictment, which raises questions about the authority of the judiciary being exercised over the Executive, the impeachment is laid out clearly. It does not percipitate a crisis of any kind.
> [@](#):
>
> Not as of 12:01 PM 1/20/01. Did he? No. Why not? Obviously because the desired damage had been done, right?
As I understand it, he threatened prosecution. And, just like every other criminal case, plea negotiations were held, and an agreement reached in which criminal prosecution was deferred if Mr. Clinton surrendered his law license. For an offense of perjury when the accused is a lawyer, that’s a very standard outcome.
> [@](#):
>
> When it’s been shown to me, yes. You haven’t done so. But that’s a nice try, if typical of your approach, to avoid addressing the subject about which you’ve been asked by reverting to either evasions, omissions, or, this time, ad hominems.
Just curious, then: could you provide a cite to a single such event in GD? One where you’ve conceded you were wrong? I’ve never seen such.
> [@](#):
>
> > [@Bricker](#):
> >
> > I think he thought he’d find Clinton was embroiled in the Whitewater scandal. He discovered illegal activities by McDougal and Tucker, and undoubtedly thought he could convince them to testify against Clinton. Obviously, he was wrong.
>
> And what does that imply for what he should have done then? Can you make the connection? Do you not think he should have wrapped it up then, instead of entering the world of blowjobs? Why not?
Because during his investigation into Whitewater, he was approached by Paula Jones’ attorneys, who advised him that they believed the President was guilty of perjury. He then asked permission from the judge overseeing the grand jury to extend his investigation into this new crime, and permission was granted. So no, I don’t think he necessarily should have wrapped it up then.
To continue my traffic stop analogy, the officer has stopped the car on an obvious - but legal - pretext of a failing rear light when his real reason was seeing the car leave a known drug zone. He approaches the car and asks questions. During that process, he sees some computers in the back seat with “Federal Government Property” stickers on them. Now, this has nothing to do with either a failing light bulb OR drugs, but he’s perfectly entitled to investigate what might be stolen computer equipment, now that he’s seen it.
> [@](#):
>
> > [@Bricker](#):
> >
> > I think he always had a good-faith belief that he was pursuing some actual crime.
>
> You just said there was a point at which he realized otherwise, not “always”.
No. But I agree the original sentence was confusing, so I’ll clarify.
I said:
> [@Bricker](#):
>
> arguably, Starr became convinced of Clinton’s guilt only after the investigation began, and Clinton was guilty of an act that never would have happened, but for the investigation!
“The investigation” is ambiguous in the above, and it’s what’s causing our trouble.
To be clearer, I should have said: arguably, Starr became convinced of Clinton’s perjury guilt only after the Whitewater investigation began and Starr received permission to extend his inquiry into Clinton’s perjury, and Clinton was guilty of an act that never would have happened, but for the investigation!
> [@](#):
>
> And, once he finds that the driver has committed no infraction, he lets him go, with or without an apology. Is that what Starr did? Or is the analogy to a cop who sees a car belonging to someone he wants to get, pulls him over, breaks his taillight and tells him that’s the reason for the pullover, says he saw him leaving a drug house and that he has probable cause for a cavity search, gets out the rubber gloves …
No, I think it’s closer to the potentially stolen computers I mentioned above. As he’s investigating one crime, a second is made apparent, so he begins investigating that.
> [@](#):
>
> Try that line of reasoning again. No one is above the law, certainly. But no one is below it either. Not even Presidents of the other party.
Well, I agree that if this had been Joe Blockhead, the investigation never would have happened. So in that respect, you’re right: targeting him with such a high level of scrutiny, much more than you would give to an ordinary citizen, in some respects puts him “below the law.”
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### Author:  [@Frank](https://boards.straightdope.com/u/Frank)
#### Post date: [October 9, 2005, 4:48pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/204 "2005-10-09T16:48:01Z")
> [@Bricker](#):
>
> The President is subject to the rule of law, as a general proposition, but he is NOT “just another citizen.” He is a constitutional officer. He embodies the Executive Branch.
I think we’ll have to agree to disagree on this. In other words, I disagree, but I’m not going to take it to the mats with you. Nobody in this country is above the law. Avoiding charging a sitting President with a crime simply because he is President is a step in the direction of “l’etat; c’est moi.”
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### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [October 9, 2005, 4:53pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/205 "2005-10-09T16:53:45Z")
> [@Bricker](#):
>
> The President is subject to the rule of law, as a general proposition, but he is NOT “just another citizen.” He is a constitutional officer. He embodies the Executive Branch.
:dubious: Any state or federal judge, including any justice of the Supreme Court, can be indicted. Any member of Congress can be indicted. Any federal civil service employee can be indicted. Any presidential appointeeee, up to the level of Cabinet secretary, can be indicted. Even the **vice-president** – who is, like the president, a constitutional officer – can be indicted. (Remember Spiro Agnew?) So why should the rule be any different for the president?
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### Author:  [@ShibbOleth](https://boards.straightdope.com/u/ShibbOleth)
#### Post date: [October 9, 2005, 4:57pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/206 "2005-10-09T16:57:44Z")
> [@RTFirefly](#):
>
> Nah, Commissioner of Baseball. It’s a job that was made for him. Plenty of opportunities for cronyism, as Selig’s been busy demonstrating lately. That certainly plays to Bush’s strengths.
Why do you hate baseball?
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### Author:  [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)
#### Post date: [October 9, 2005, 5:41pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/207 "2005-10-09T17:41:26Z")
Selig? I don’t know, but it’s sure obvious he does.
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### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [October 9, 2005, 7:15pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/208 "2005-10-09T19:15:05Z")
I suggest we end the hijack and get this thread back on the subject of Tom DeLay. I’ve started a separate thread to discuss whether the president can be indicted without being impeached: [http://boards.straightdope.com/sdmb/showthread.php?t=338902](http://boards.straightdope.com/sdmb/showthread.php?t=338902)
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [October 9, 2005, 9:36pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/209 "2005-10-09T21:36:32Z")
> [@Bricker](#):
>
> Certainly Starr’s action’s weren’t AGAINST the law. Yes, I agree that no law technically prevented him from directly indicting the President. But he could have felt, as we both do, that going down that path would be such an unwise idea that he chose not to do it. How does that help your position or hurt mine?
If he felt it was unwise to prosecute, by your logic he should have ceased prosecuting.
> [@](#):
>
> But there are several significant distinctions: to indict a President, you need one prosecutor (elected or unelected) and three-fourths of a grand jury (unelected). To impeach a President, you need one half of the 435 US House of Representatives. The bar for impeachment is much higher.
The most important distinction of all is that impeachment has jack shit to do with the legal process. Why do you continue this obfuscation?
> [@](#):
>
> As I understand it, he threatened prosecution. And, just like every other criminal case, plea negotiations were held, and an agreement reached in which criminal prosecution was deferred if Mr. Clinton surrendered his law license. For an offense of perjury when the accused is a lawyer, that’s a very standard outcome.
Clinton’s status as a lawyer was incidental, although it provided a convenient way out for Starr. What do you think the outcome would have been if he were not one? Isn’t one entitled to think that Starr had no case and proceeded anyway, in a way that would make any other prosecutor “scum” in your eyes?
> [@](#):
>
> Just curious, then: could you provide a cite to a single such event in GD? One where you’ve conceded you were wrong? I’ve never seen such.
Either take it to the Pit or fuck off.
> [@](#):
>
> Because during his investigation into Whitewater, he was approached by Paula Jones’ attorneys, who advised him that they believed the President was guilty of perjury. He then asked permission from the judge overseeing the grand jury to extend his investigation into this new crime, and permission was granted. So no, I don’t think he necessarily should have wrapped it up then.
Do you ever get tired of evasion? Do you really not see that Starr, after years of failure, was looking for something to get Clinton for? Yes, the paperwork procedures were followed. So are they followed by every other prosecutor you’re willing to label “scum”, or in Earle’s case (based on no evidence whatsoever) “fascist”.
> [@](#):
>
> To continue my traffic stop analogy
Unless you can show relevance, or address the corrected version I supplied you, you need not do so. To repeat, there was no perjury, and arguably never was, except what Starr created by his trap. There was no probable cause for Starr to get into the Scaife, er, officially “Jones” suit. Your analogy is false, but if you choose to drop it I’ll understand.
> [@](#):
>
> To be clearer, I should have said: arguably, Starr became convinced of Clinton’s perjury guilt only after the Whitewater investigation began and Starr received permission to extend his inquiry into Clinton’s perjury, and Clinton was guilty of an act that never would have happened, but for the investigation!
Even that isn’t true. He \*wasn’t \* inquiring into perjury but into Clinton’s sex life (as the gratuitous prurience of his report demonstrates). The only perjury, if I were to grant it even existed, was \*created \* by Starr’s investigation, not the excuse for it.
> [@](#):
>
> Well, I agree that if this had been Joe Blockhead, the investigation never would have happened. So in that respect, you’re right: targeting him with such a high level of scrutiny, much more than you would give to an ordinary citizen, in some respects puts him “below the law.”
Thank you. Does that violation of the Constitution’s equal protection guarantees imply anything further to you as to the propriety of Starr’s efforts?
**BrainGlutton** , sorry you feel that way, but this is in fact relevant to the DeLay case. He alleges a prosecutor’s use of office to pursue a political vendetta, with partisan revenge for, yes, the anti-Clinton vendetta as a motive. To clear up the point about it’s being such “fascism” or merely justice, the anti-Clinton vendetta needs to be assessed in the same light.
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### Author:  [@Updike](https://boards.straightdope.com/u/Updike)
#### Post date: [October 9, 2005, 10:56pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/210 "2005-10-09T22:56:40Z")
> [@ElvisL1ves](#):
>
> Either take it to the Pit or fuck off.
Now that’s a compelling argument, may I subscribe to your newsletter?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 10, 2005, 10:34am UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/211 "2005-10-10T10:34:20Z")
> [@ElvisL1ves](#):
>
> Thank you. Does that violation of the Constitution’s equal protection guarantees imply anything further to you as to the propriety of Starr’s efforts?
You know, **Hamlet** wondered recently why anyone would ever take the time to reply to you.
Now I ask myself the same question.
We’ve just been through a thread that discusses, in excruciating detail, the Equal Protection clause and how violations of it are analyzed.
And yet despite that education, freely offered, you have now suggested that the equal protection clause is violated if a prosecutor spends more effort trying to prosecute a public figure than a private one.
I’m done trying, with you. Goodbye.
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [October 10, 2005, 2:24pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/212 "2005-10-10T14:24:24Z")
Ooh, the ol’ spirit of the law thing again. Sorry that the concept vexes you so.
Yet we’re discussing _ethicality_, or rather you brought it up originally in regard to both Earle’s efforts and Starr’s, and have made some ringingly obvious pronouncements on the subject as well. If you have to revert to torturedly arguing the letter exclusive of the spirit, including reordering of the facts, in order to avoid reaching the obvious, albeit discomfiting, conclusions about prosecutorial conduct when comparing the 2 cases, that says everything it needs to, doesn’t it?
**Updike** , that was simply responding in kind. If you’d like to be a regular customer of the Abuse Clinic, that’s 5 doors down.
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### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [October 10, 2005, 3:23pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/213 "2005-10-10T15:23:15Z")
> [@Bricker](#):
>
> Yes, I agree that arresting the President is not against any law, and not against the Constitution. But since the entire concept of judicial review is not created by the Constitution, I could just as well argue that Congress and the President were free to regard the Supreme Court’s opinions as advisory, not binding. The Supreme Court simply declared that it could review and strike down law. That system is now ingrained into our government, but ignoring it would not violate the written word of the Constitution – yet it would percipitate a Constitutional crisis.
This is rather far from the topic of this thread, but I’m minded to address this, on the theory that it’s no further than the presidential-indictment issue that you parallelled it to.
Quite simply, judicial review says absolutely nothing about “striking down a law”; that’s law-school-ese and newspaperese for what actually happens. In point of fact, an unconstitutional law sits on the books, just as always. The comments about states amending their state constitutions to remove unconstitutional provisions decades after the fact, in other threads, exemplify this. When New York’s courts declared its consensual sodomy law unconstitutional decades before _Lawrence_, the law remained on the books, and was reprinted in the consolidated statutes, complete with the case-law annotation establishing its unconstitutionality.
What a finding of unconstitutionality does, and why theorists claim the same right for the other two branches is, quite simply, that the governmental entity in question refuses to do its legal duty or exercise its magisterial power with regard to a provision it regards as violative of the Constitution. Visualize a set of movies:
Congress is hotly debating some bill it is considering enacting, and the Jimmy Stewart character or Sam Ervin lookalike stands up and in a well-crafted dramatic speech convinces the Senate (it’s always the Senate in such movies, for some reason) that the proposed law violates the Bill of Rights. Or the movie is about a President whom a venal Congress (movies about Presidents _always_ have venal Congresses, probably for verisimilitude ;)) has empowered to enforce a law that he sees as against Truth, Justice, and the American Way. So **he** declares he will not enforce it. Great drama, but generally it’s handled much more subtly.
But this is precisely what the courts do, and have done since _Marbury_: just as Congress refuses to enact a bill that would create an unconstitutional law, and the President refuses to enforce an unconstitutional law, in our two dramatic scenes, the courts, on a more or less everyday basis, refuse to apply to the case before them a law that _they_ see as violative of the constitution. Each body is, to use good old Warren Burger’s term, exercising its core function: Congress, to enact law; the President, to execute the law of the land; and the Courts, to adjudicate in accordance iwth the law of the land. Each refuses to do that function in violation of the _supreme_ law of the land, the Federal Constitution.
They do not, in fact, “throw out a law.” They just refuse to judge in accordance with a statute, regulation, or whatever, when that statute/regulation/whatever is not in accordance with higher law, i.e., the Constitution. The law continues in some metaphysical existence recognized by its continued presence in the state constitutions, statute books, etc. It simply becomes a nullity insofar as being the basis on which law enforcement bodies and the courts will act.
While I know that you, **Bricker** , were engaging in some shorthand language there, I thought it wise to drag out and explore exactly what the consequences of a finding of unconstitutionality were, for clarity’s sake.
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### Author:  [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)
#### Post date: [April 4, 2006, 10:41am UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/214 "2006-04-04T10:41:41Z")
As the long-absent OP let me say…
[That answers that.](http://www.washingtonpost.com/wp-dyn/content/article/2006/04/03/AR2006040301787.html)
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### Author:  [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)
#### Post date: [April 4, 2006, 10:54am UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/215 "2006-04-04T10:54:33Z")
Not yet, Jon. Not yet.
This is where it gets interesting.
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### Author:  [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)
#### Post date: [April 4, 2006, 11:00am UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/216 "2006-04-04T11:00:02Z")
You think he’ll stay in office somehow? I just don’t see it. I see a positioning at a think tank or something as his landing point. He’ll be around but not in an ‘official’ power capacity.
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### Author:  [@jayjay](https://boards.straightdope.com/u/jayjay)
#### Post date: [April 4, 2006, 11:19am UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/217 "2006-04-04T11:19:58Z")
Given Bush’s appointment history, DeLay will probably be made head of the FEC…
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### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [April 4, 2006, 1:34pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/218 "2006-04-04T13:34:01Z")
> [@E-Sabbath](#):
>
> Not yet, Jon. Not yet.
>
> This is where it gets interesting.
Hmmm? He’s announced he’s not running for re-election. You think he’s gonna take it back?
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### Author:  [@squeegee](https://boards.straightdope.com/u/squeegee)
#### Post date: [April 4, 2006, 1:46pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/219 "2006-04-04T13:46:43Z")
> [@BrainGlutton](#):
>
> Hmmm? He’s announced he’s not running for re-election. You think he’s gonna take it back?
Maybe he means it gets interesting when we find out what the prosector has on him. He’s lost his seat, but there’s much more still to lose.
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### Author:  [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)
#### Post date: [April 4, 2006, 2:00pm UTC](https://boards.straightdope.com/t/is-delay-going-down/298028/220 "2006-04-04T14:00:41Z")
Yeah, but for all political intents and purposes he’s done. He lost his leadership post and now this has cost him his seat in Congress. Stick a fork in him, he’s done.
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