# Presidential Prosecution - Why is there such a gaping void in our constitution? **URL:** \ **Category:** Great Debates\ **Created:** [June 16, 2017, 3:11pm UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120 "2017-06-16T15:11:18Z")\ **Posts on this page:** 15\ **Page:** 4
**Author:** ![YamatoTwinkie](https://avatars.discourse-cdn.com/v4/letter/y/cc9497/32.png) [@YamatoTwinkie](https://boards.straightdope.com/u/YamatoTwinkie)\ **Post date:** [June 19, 2017, 10:26pm UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/61 "2017-06-19T22:26:05Z")
> [@Johnny\_Ace](#): > > What I love is the fallback argument…“Impeach him.” Knowing full well that there’s about as much chance of this House doing so as I have of transforming into a rhinoceros tomorrow. Right now, you’re probably right. But come 2018 elections, if Trump’s approval ratings continue to sink below 25%? They’ll drop him like a hot potato. You have to look at it from their perspective: There’s just no incentive for impeachment currently. The FBI and Senate investigations are still in the early stages, with a lot of smoke but no (clear) fire. Trump still has significant popularity with his base. Regardless of how many of them probably feel about Trump personally, and how many of them would probably prefer Pence, the best course of action is to ride it out, get legislation passed, and play tepid defense for Trump (with just enough support to satisfy their base, and just weak enough praise to say “i-told-you-so” when he catastrophically fails later on) . To do otherwise risks angering their constituents right now, and getting primaried. Especially if the investigations don’t turn up anything conclusive, and Trump (miraculously) manages to turn off Twitter, does something presidential, and his approval ratings climb above 45%. But once the mid-terms get close, and assuming Trump’s base support starts to erode, and his general poll numbers are below the 30’s, every R in congress in vulnerable districts is going to start looking for the exits. If faced with a electoral tsunami, the R’s are going to abandon ship and preserve their own jobs. Trump is going to, rightly or wrongly, live or die on his approval numbers, his down-ballot effects on the 2018 and 2020 elections, and all the political tea-leave readings from the state and special elections in between those years. The founding fathers decided to (i think wisely) put the brakes on the presidential removal. The president was elected for a reason. Having a president get kicked to the curb every time his or her poll numbers dip below 50% means that the president is never going to be able to make tough decisions that may upset the masses. That’s why such a high bar is needed for impeachment in the senate. With 6-year terms, they should ideally be able to make a decision farther-removed from mob-rule. ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [June 20, 2017, 12:21am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/62 "2017-06-20T00:21:21Z")
The idea that the President could not be prosecuted for a crime simply because he is President would have dumbstruck the Founders. They could not fathom that POTUS would above the law or that POTUS would be so feckless about nakedly using the government as a vehicle to enrich himself and his family. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2017, 12:49am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/63 "2017-06-20T00:49:57Z")
> [@zamboniracer](#): > > The idea that the President could not be prosecuted for a crime simply because he is President would have dumbstruck the Founders. They could not fathom that POTUS would above the law or that POTUS would be so feckless about nakedly using the government as a vehicle to enrich himself and his family. Really? Dumbstruck, huh? Can you explain, then, why Alexander Hamilton in The Federalist 65 said: > [@](#): > > The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a prepetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. That sure sounds like he worked through his dumbstruckedness and contemplated that impeachment was the predicate to criminal indictment. Also Federalists 69 and 77. It’s almost as if you’re opining about what the Founding Fathers thought without having read the Federalist Papers. Let’s look at the feckless claim. In Federalist 75, the Senate is chosen as the body to ratify the treaty proposals of the President precisely because: > [@](#): > > However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States. Can I ask you which of the Federalist Papers you have read? ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [June 20, 2017, 2:29am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/64 "2017-06-20T02:29:46Z")
> [@Bricker](#): > > So what? > > Seriously, you say this like it has some weighty significance. But from the perspective of Constitutional operation, a Congress sympathetic to the President is conceded to be far less likely to impeach than one hostile to the President. > > So what? All it takes is a little deductive reasoning. It points out that as long as the President has a majority of the House, he’s pretty much immune to any kind of remedy, barring commission of a crime heinous enough to turn even his own party against him. Especially when that party is the GOP, who wouldn’t know duty to their country if it walked up and bit them, while simultaneously wrapping themselves in the flag. The punchline: Republicans are the minority. They’ve perverted the Constitution to their own ends. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2017, 2:41am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/65 "2017-06-20T02:41:40Z")
> [@Johnny\_Ace](#): > > All it takes is a little deductive reasoning. It points out that as long as the President has a majority of the House, he’s pretty much immune to any kind of remedy, barring commission of a crime heinous enough to turn even his own party against him. Especially when that party is the GOP, who wouldn’t know duty to their country if it walked up and bit them, while simultaneously wrapping themselves in the flag. > > The punchline: Republicans are the minority. They’ve perverted the Constitution to their own ends. This never was imagined by the Founders! They never anticipated that impeachment would connect itself with pre-existing factions, and enlist all their animosities, partialities, influence, and interest on one side or on the other, did they? They never were warned that in such cases there will be the great danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. Right? This is just a new perversion on the part of the Republicans, not an observation from The Federalist 65. Same question to you: which of the Federalist Papers have you read? ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [June 20, 2017, 2:52am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/66 "2017-06-20T02:52:17Z")
> [@YamatoTwinkie](#): > > Right now, you’re probably right. But come 2018 elections, if Trump’s approval ratings continue to sink below 25%? They’ll drop him like a hot potato. > > You have to look at it from their perspective: There’s just no incentive for impeachment currently. The FBI and Senate investigations are still in the early stages, with a lot of smoke but no (clear) fire. Trump still has significant popularity with his base. Regardless of how many of them probably feel about Trump personally, and how many of them would probably prefer Pence, the best course of action is to ride it out, get legislation passed, and play tepid defense for Trump (with just enough support to satisfy their base, and just weak enough praise to say “i-told-you-so” when he catastrophically fails later on) . To do otherwise risks angering their constituents right now, and getting primaried. Especially if the investigations don’t turn up anything conclusive, and Trump (miraculously) manages to turn off Twitter, does something presidential, and his approval ratings climb above 45%. > > But once the mid-terms get close, and assuming Trump’s base support starts to erode, and his general poll numbers are below the 30’s, every R in congress in vulnerable districts is going to start looking for the exits. If faced with a electoral tsunami, the R’s are going to abandon ship and preserve their own jobs. Trump is going to, rightly or wrongly, live or die on his approval numbers, his down-ballot effects on the 2018 and 2020 elections, and all the political tea-leave readings from the state and special elections in between those years. > > The founding fathers decided to (i think wisely) put the brakes on the presidential removal. The president was elected for a reason. Having a president get kicked to the curb every time his or her poll numbers dip below 50% means that the president is never going to be able to make tough decisions that may upset the masses. That’s why such a high bar is needed for impeachment in the senate. With 6-year terms, they should ideally be able to make a decision farther-removed from mob-rule. Unfortunately, the Senate never even sees it unless the House votes to impeach. Guess who holds their biggest majority in decades? Contrary to what seems to be the consensus opinion around here, I doubt the Dems will win the House back in 2018. The Pubbies still have all the electoral advantages, and Dems can’t seem to be bothered to get off their asses and do anything about it. Nor do I have any faith in those so-called ‘moderates’ who voted for change for change’s sake, regardless of what clown they put in to damage our national standing, dignity, and institutions and gave complete control. If they’re dumbfucks enough to do it once, they’ll buy the Republican bullshit again. Who are they going to get primaried by? Trump’s numbers aren’t going to drop significantly. He’ll maintain just about the same level of true believers for whom it’d be an honor to eat his shit. They can rationalize anything. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 20, 2017, 2:52am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/67 "2017-06-20T02:52:46Z")
> [@Bricker](#): > > Translation: you might be right but I’m going to change the subject. No, you’re technically wrong, according to the cite: > [@](#): > > Earlier in the day, in a conference call with the media, Obama’s deputy communications director, Dan Pfeiffer, argued that while the health bills in the House and Senate have not gotten Republican votes, the process was bipartisan because dozens of Republican amendments were adopted. > > And that’s technically true. But it’s a stretch to characterize it as bipartisan. [emphasis added] Now, it’s a reasonable time to move the goalposts: the adoption of these 159 amendments doesn’t show the bill was bipartisan. But first, you gotta admit the goalposts were in the wrong place. Of course, if we’re playing this game, we’re on the wrong field entirely. The health care bill process happening _right now_ is wretched and should be changed. ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [June 20, 2017, 2:57am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/68 "2017-06-20T02:57:36Z")
> [@Bricker](#): > > This never was imagined by the Founders! They never anticipated that impeachment would connect itself with pre-existing factions, and enlist all their animosities, partialities, influence, and interest on one side or on the other, did they? They never were warned that in such cases there will be the great danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. Right? This is just a new perversion on the part of the Republicans, not an observation from The Federalist 65. > > Same question to you: which of the Federalist Papers have you read? All of them, smart guy. And the FF’s still put in place a system which allowed exactly that to happen. When did I ever say it was new? Speaking of perversion, it’d really be nice if for once you could manage not to utterly warp anything that I say. But I guess that’s far too much to hope for, isn’t it? Btw, when was the last time a President was prosecuted for a crime after he left office? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2017, 2:57am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/69 "2017-06-20T02:57:58Z")
> [@Left\_Hand\_of\_Dorkness](#): > > No, you’re technically wrong, according to the cite: > [emphasis added] > Now, it’s a reasonable time to move the goalposts: the adoption of these 159 amendments doesn’t show the bill was bipartisan. But first, you gotta admit the goalposts were in the wrong place. > > Of course, if we’re playing this game, we’re on the wrong field entirely. The health care bill process happening _right now_ is wretched and should be changed. No, no – I agree that amendments were adopted in each house; I argue that they did not survive reconciliation. In other words, I say the final law did not contain these amendments (except for the Pell grant ones at Sec. 2101(a)(2)(C) and Sec. 2101(a)(2)(D). ) ---
**Author:** ![Chisquirrel](https://avatars.discourse-cdn.com/v4/letter/c/6bbea6/32.png) [@Chisquirrel](https://boards.straightdope.com/u/Chisquirrel)\ **Post date:** [June 20, 2017, 4:34pm UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/70 "2017-06-20T16:34:19Z")
> [@Bricker](#): > > No, no – I agree that amendments were adopted in each house; I argue that they did not survive reconciliation. In other words, I say the final law did not contain these amendments (except for the Pell grant ones at Sec. 2101(a)(2)(C) and Sec. 2101(a)(2)(D). ) Those bills were passed by both houses with Republican amendments, but no Republican votes. If it wasn’t enough for Republicans to vote for it, why keep it? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2017, 5:19pm UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/71 "2017-06-20T17:19:47Z")
> [@Chisquirrel](#): > > Those bills were passed by both houses with Republican amendments, but no Republican votes. If it wasn’t enough for Republicans to vote for it, why keep it? I don’t understand what you’re asking. ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [June 20, 2017, 6:57pm UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/72 "2017-06-20T18:57:37Z")
Someone with substantially more legal experience than I who disagrees with the Federalist 65 argument: [A Disabled Executive: The Special Counsel Investigation and Presidential Immunities](https://lawfareblog.com/disabled-executive-special-counsel-investigation-and-presidential-immunities) by Bob Bauer, ex-White House Counsel to President Obama. ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [June 21, 2017, 2:28am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/73 "2017-06-21T02:28:27Z")
> [@Bricker](#): > > Really? > > Dumbstruck, huh? > > Can you explain, then, why Alexander Hamilton in The Federalist 65 said: > > That sure sounds like he worked through his dumbstruckedness and contemplated that impeachment was the predicate to criminal indictment. > > Also Federalists 69 and 77. It’s almost as if you’re opining about what the Founding Fathers thought without having read the Federalist Papers. > > Let’s look at the feckless claim. In Federalist 75, the Senate is chosen as the body to ratify the treaty proposals of the President precisely because: > > Can I ask you which of the Federalist Papers you have read? I have read them all Mr Bricker. What did you do with the money your parents gave you for the Dale Carnegie course? Seriously, where does it say the President is immune from prosecution criminally? Answer: Nowhere. He (or she) is not. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 21, 2017, 3:10am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/74 "2017-06-21T03:10:10Z")
> [@zamboniracer](#): > > I have read them all Mr Bricker. What did you do with the money your parents gave you for the Dale Carnegie course? Seriously, where does it say the President is immune from prosecution criminally? Answer: Nowhere. He (or she) is not. It’s true that the definitive statement is not made – and indeed, even if it were, the Federalist is not a source of law. But it’s also clear that the concept is discussed, and when it’s discussed, the only thing that’s contemplated is impeachment followed by conviction, which means that no contemporary would be “dumbstruck,” at the claim. My point was that “dumbstruck” is not an accurate claim. The Founding Fathers had discussed the issue. Which I guess you knew but forgot. . . since you read them all. ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [June 21, 2017, 4:02am UTC](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120/75 "2017-06-21T04:02:46Z")
> [@zamboniracer](#): > > I have read them all Mr Bricker. What did you do with the money your parents gave you for the Dale Carnegie course? Seriously, where does it say the President is immune from prosecution criminally? Answer: Nowhere. He (or she) is not. He traded it in for Creative Hyperbole 101. It doesn’t, which means it’s open to interpretation by SCOTUS. Hence the need for explicit language or a precedent-setting, landmark case, neither of which will likely ever happen. Not coincidentally, each of the three SC cases that deal with the issue corresponds to one impeachment (or near-impeachment, WRT Nixon). [Previous page](https://boards.straightdope.com/t/presidential-prosecution-why-is-there-such-a-gaping-void-in-our-constitution/789120.md?page=3)