I think the most straightforward reading of the Constitution is that the President cannot be indicted or prosecuted in a Federal court for a crime, simply because indicting and prosecuting are functions of the Executive Branch and he is the Executive Branch. He can’t logically indict or prosecute himself. It also seems very unlikely he could be indicted or prosecuted in state court, because the Supremacy Clause makes the Federal executive functions (i.e. the President) superior to those of the states. It’s the same reason the decisions of state courts can be reversed by Federal courts, regardless of the state’s constitution or statutes.
Of course, that doesn’t mean at all that the man is unaccountable. He can be impeached by the House and convicted by the Senate, for any reason or none – it’s a political, not legal, decision – and once removed from office he is an ordinary citizen, and can be indicted and prosecuted with all due vigor by his successor as President, or by any state court that can plausibly claim jurisdiction.
and once removed from office he is an ordinary citizen, and can be indicted and prosecuted with all due vigor by his successor as President, or by any state court that can plausibly claim jurisdiction.
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This is part of Muellers’s particularly savvy investigation so far; working with state AGs to establish state levels crimes as well so that targets of the investigation can’t rely on a federal pardon to avoid prosecution.
I’ve seen an article (written by a member of the Obama DOJ, IIRC) in which the author argued that it’s extremely unlikely that Mueller will indict Trump. His point was that while the question of whether a president can be indicted for crimes is not settled, the official DOJ position has for some time been that he cannot. Due to the nature of Mueller’s appointment (as discussed by others on this thread) he is subject to DOJ policy on this matter.
No idea how valid this is, just tossing out something I’ve read.
My best guess is that Mueller will get as many indictments or plea bargains as he can from underlings and then publish a report on Trumo so damning that the House will either be forced to begin the Impeachment process or face substantial (substantialer?) backlash in November.
Then what happens if (when?) the Dems take the House? Do they begin the Impeachment proceedings in January 2019 or not?
That is the “unitary executive” theory of federal law which is generally pretty persuasive, AAIU.
I agree that it is very unlikely that Mueller will attempt to indict the president. Of course, nobody will know for sure if it’s possible unless and until somebody tries it. But I think most federal prosecutors are in agreement that the proper venue for addressing presidential misconduct is the impeachment process, at least initially.
I’m not a lawyer, but I think you have these concepts very mixed up.
The Supremacy Clause of the Constitution directs that when the Federal government has jurisdiction over a matter, like legislation on interstate commerce, constitutional protections of various rights, and so forth, that such laws are the supreme law of the land, and state laws must conform to them. But where states have sovereignty on various matters, such as many criminal and civil matters, the states are afforded broad powers that can’t simply be pushed aside by the Federal government. To the extent that both the Federal and state governments share powers in a certain sphere, that overlap has to be worked out depending on the precise facts and laws at stake.
So, if the Federal government decides not to prosecute mobster Joey Two-Shoes on racketeering charges, that does not mean that states have lost their power to prosecute Joey on whatever state charges he may have violated. Nor does it seem that the President is above all state laws simply because he’s soooooo important.
However… the extent to which a sitting President may be held to account to state civil or criminal matters appears to be an unsettled matter. In Clinton v. Jones, the Supreme Court held that a President is not immune from civil suits brought in states for matters done before taking office. One can only speculate on to what degree a President may or may not be immune to criminal charges brought by states during a Chief Executive’s time in office, whether for acts before or during the presidency.
Carl Pham made various points. But you quoted one particular one, i.e. that the Supremacy Clause precluded a state indictment. And you proceeded to say that he “ha[d] these concepts very mixed up”, and proceeded with several paragraphs purporting to explain why the supremacy clause would not preclude a state indictment.
In response to that specific claim, I quoted an expert who contradicted you, about the specific claim you were making in that post.
So your response is that well, the guy disagreed with Carl Pham about various other things. OK, but that’s another matter.
I’ll leave it to Carl Pham to state whether he objects to my conclusion: “However… the extent to which a sitting President may be held to account to state civil or criminal matters appears to be an unsettled matter.”
FTR, I was not objecting to your claim that it’s an unsettled matter. I did not quote that part of your post.
I objected to your claim that the Supremacy Clause had no bearing on the matter, and that Carl Pham, in asserting otherwise, had “these concepts very mixed up”.
As an aside on the issue, Mr. Rotunda’s memo on the subject doesn’t seems to include any legal analysis of the Supremacy Clause, but goes into excruciating detail on every other facet of the issue. The entirety of his statement is: “In addition, I express no opinion as to whether a prosecution by state authorities may be proper (a state prosecution may violate the Supremacy Clause).”
If anyone has any further legal or academic discussion of the words copied below provides immunity to the President from state prosecution, I would like to read it.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Here is an interesting take. The gist is not only can’t Mueller indict the President he can’t even make a referral to the House without approval from the DOJ.
The D’s have control of the House, right? What stopped them from ignoring R’s attempt at delay and changing the rules as necessary to convene with or without an R boycott?
Doing what they did kept the Reps from claiming they were simply refusing to participate in a partisan railroading, as if they didn’t pull a Sergeant Schultz when Nunes was the chair. They’ll have to find other, less-credible excuses now.