Laurence Tribe, Harvard Con law prof: Yes, a sitting President CAN be indicted.

[pnwmom]

So the people who have been saying that indictment must wait till after impeachment are wrong. Indictment can occur -- it's only the prosecution that must wait till after a President is out of office. And a Grand Jury indictment could lead to Impeachment in the House.

Link to tweet

[rogerashton]

1. But would the Pubs be reckless and shameless enough

to refuse to impeach an indicted president? Shameless enough, without a doubt. And the indicted president could run for re-election. (Gene Debs ran from prison in 1920.)

The Republicans might see their odds as better campaigning on the claim that the indictment was spurious and partisan than the odds would be if they impeached a president of their own party, indicted or not.

[BumRushDaShow]

2. If I'm not mistaken

Agnew was charged while in office and entered a plea agreement that allowed him to resign from office before he officially entered a no contest plea (with all sorts of reduced sentence).

[H2O Man]

5. More, the courts

ruled in the 1990s that a sitting president could be forced to deal with a civil law suit.

[BumRushDaShow]

6. And we of course saw that with Clinton. nt

[onenote]

10. The weight of scholarship distinguishes the President from the VP with respect to immunity

from indictment and/or prosecution while in office.

See https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222.pdf

[BumRushDaShow]

14. I actually read through that entire thing

and it was a legal opinion based on what had happened with Nixon in 1973 and went on to include Clinton (which was different) - published 2000.

Where we are today is light years from 17 years ago (at publication) referencing incidents from 44 years ago (and including court cases from the '70s and '90s).

I think there is a bit of naivete in the opinion that assumed that -

1.) If the wagons were fast circling, the President would resign.
2.) If impeachment were to go forward, Congress would "do the right thing" - (i.e., the brief mentions that they were "accountable to their constituents", despite the fact that due to the hyper-partisan creation of Congressional Districts at the state level (not mentioned), that more and more in Congress have only pledged accountability to a part of their constituency - and in some cases state-wide, a minority party by registration, garners a majority of the Congressional Districts).
3.) The "high crimes and misdemeanors" would generally not rise to a level of criminality beyond "cover up".

I think we are in uncharted waters and I really don't think "the founders" believed that a President could do no wrong to the point of near dictatorship, without intervention beyond at least one other branch than Congress and the Chief Justice (when in the Senate for trial) - I.e., judicial branch in general, not just the SCOTUS. The brief even admitted that (paraphrase) - "Well yeah, there is a provision for the succession to the VP if...", while still insisting that if the President was under criminal investigation, the country would fall apart. There needs to be follow-through on a "what-if", when you have a President who refuses to resign and a Congress that refuses to impeach, and the country is imperiled with a potential rogue in office. Just the fact that "the founders" were well aware as to why the revolution occurred, so too would they have thought about such a scenario of what we see today.

[unblock]

28. the only thing the founders would have found surprising about benedict donald

was that we lasted so long without someone like him.

i'm quite sure they never expected the constitution to last well over two centuries. they likely didn't expect the nation to last that long.

they were well aware of tyranny and tyrants and how hard it is to prevent them, and no doubt figured one was inevitable, but they could at least make things hard for a tyrant.

frankly, the founders expected another revolution in the face of unchecked tyranny.

[BumRushDaShow]

37. I have always said (and posted)

that this government operates on an "honor system". It expects that if you lose an election, you will step down (even allowing for a potential remedy in the courts if challenging the results).... And if you persist long enough, you can often make a change for the better via the means for electing representatives who can enact laws that are beneficial or can convince the courts to strike down laws that are detrimental.

I.e., there were all sorts of "remedies" built in to keep the desire for a coup, down to a minimum.

But at the moment, we seem to be in the midst of a perfect storm that has allowed for the circumvention of some of the traditional remedies, and the hope is that there are enough people in the right places and in the proper roles to get us back on track.

[Botany]

3. Obstruction of Justice ..... Trump fired Comey to stop an investigation between him and Russia

Please tell me why Donald Trump is not guilty of breaking the following statute 1505,
Obstruction of Justice?

************

Obstruction of justice
Obstruction of justice is defined in the omnibus clause of 18 U.S.C. § 1503, which provides that "whoever . . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be (guilty of an offense)." Persons are charged under this statute based on allegations that a defendant intended to intefere with an official proceeding, by doing things such as destroying evidence, or intefering with the duties of jurors or court officers.

A person obstructs justice when they have a specific intent to obstruct or interfere with a judicial proceeding. For a person to be convicted of obstructing justice, they must not only have the specific intent to obstruct the proceeding, but the person must know (1) that a proceeding was actually pending at the time; and (2) there must be a nexus between the defendant’s endeavor to obstruct justice and the proceeding, and the defendant must have knowledge of this nexus.

§ 1503 applies only to federal judicial proceedings. Under § 1505, however, a defendant can be convicted of obstruction of justice by obstructing a pending proceeding before Congress or a federal agency. A pending proceeding could include an informal investigation by an executive agency.

https://www.law.cornell.edu/wex/obstruction_of_justice

[Ligyron]

4. Do they need to wait a year or two before any indictments?

If he's re-elected, dog forbid, would his term then last longer than the statutes of limitations? Because that would be a good argument for the Pugs to give him another term - even the never Trumpers.

[Bernardo de La Paz]

7. Can he be convicted in the Senate & THEN the indictment move to prosecution in the courts?

[tableturner]

31. Yes...can be prosecuted after removal from office.

[jberryhill]

8. While I agree with Prof. Tribe...

...and I don't understand why people have been saying it is impossible, the opinion of either myself or Prof. Tribe does not make anyone "wrong". One of those "wrong" people to whom you refer of course, would be Louise Mensch who oddly claims it is prevented by the thoroughly irrelevant Supremacy Clause of the Constitution, which has absolutely no bearing on the question.

What it would be is a novel situation. The way that novel circumstances are analyzed is by finding the most closely analogous circumstances and determining whether the differences are relevant in some legally determinative way. Often, one comes up with fairly high confidence in the result.

But thinking that one expert's opinion makes a proposition "right" or "wrong" is a little simplistic. If that's the way things worked, cases would never reach the Supreme Court since, by the time they do, there are experts either way. Tribe is highly respected, but is not the last word on the subject either. Again, while I agree with him on this point, at the end of the day what you have is his opinion, and not a "right" or "wrong" answer.

[pnwmom]

11. Anyone can make a mistake, as you yourself just proved

when you brought Louise Mensch into this discussion on whether a sitting President can be indicted, and claimed she says, "it is prevented by the thoroughly irrelevant Supremacy Clause."

While I'll concede that her mention of the Supremacy Clause seems odd, and that though Laurence Tribe's opinion is that a sitting President can be indicted, it isn't "wrong" to say otherwise -- your mistake is in the thought that Louise Mensch believes an indictment is barred by the clause. She doesn't. She and Claude Taylor specifically reported that DT has been indicted.

"Separate sources with links to the intelligence and justice communities have stated that a sealed indictment has been granted against Donald Trump.

"While it is understood that the Supremacy Clause of the Constitution means that, until Mr. Trump is impeached, he cannot be prosecuted, sources say that the indictment is intended by the FBI and prosecutors in the Justice Department to form the basis of Mr. Trump’s impeachment."

She says he HAS bee indicted, but he cannot be PROSECUTED for a crime till after he has been impeached and convicted in Congress. In the meantime, the charges in the indictment can be used in drawing up the articles of impeachment.

[onenote]

9. Tribe's view is one view. It does not make other views "wrong".

See for example: https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222.pdf

Or https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222.pdf

There are multiple opinions on the question. Historical precedent seems to support the view that a president cannot be indicted or prosecuted while in office.

[treestar]

13. That's a memo that admits

no court has dealt with the question. It sounds like more of a conclusion these people want to have. The cites about no one being above the law are more important.

[onenote]

16. It's a conclusion for which neither side can cite binding precedent, which is why one cannot say

Tribe is right and those that disagree with him are "wrong" as the OP suggests.

While Leon Jaworski argued that there was no express bar to a president being immune from indictment during his or her term, he also acknowledged that “ [w]hether [the factors cited by those arguing that a sitting president cannot be indicted] ompel a conclusion that as a matter of constitutional interpretation a sitting President cannot be indicted for violations of federal criminal laws is an
issue about which, at best, there is presently considerable doubt.”

In short, whichever side one comes out on is a "conclusion those people want to have."

[treestar]

17. This could be the time

The issue is brought to the courts.

The Veep could take the job for awhile which might be a argument against the idea it would disrupy executive branch too much

[onenote]

19. Under what provision of the Consitution would the VP 'take the job for awhile"?

[treestar]

20. The president

Unable to do the job.

We can't have anyone above the law.

[onenote]

21. and when the president disagrees

and follows the procedure set forth in the Constitution, it would fall on Congress to agree he was unable to do the job by a 2/3 vote of both houses. Since it only takes a bare majority to impeach and a 2/3 majority to convict, why do you think invoking the 25th amendment is more likely to result in the removal of a president from power than simply impeaching.

Another question: if impeachment proceedings are commenced against a president for actions that have not resulted in his or her indictment, should the president be removed from office pending the outcome of the impeachment proceeding? At what stage of the proceeding? The commencement of an investigation (with witnesses etc), the adoption of articles of impeachment? The beginning of the trial in the Senate?

Should Clinton have been forced to step down during the impeachment proceedings brought against him?

If a president is indicted and then acquitted, what then?

Does it have to be a federal grand jury? What if its a state grand jury? Could a state where support for a president is low push through a grand jury indictment on trumped up charges in order to disrupt his or her presidency?

[treestar]

22. We need to figure out something

Last edited Tue May 23, 2017, 08:52 AM - Edit history (1)

Or we could be stuck with a criminal president. Supposing he really did shoot someone in public. And congress refused to do anything.

He should be charged and tried like anyone else regardless of the inconvenience to the running of the executive branch More important than that he be above the law

[onenote]

23. Sure, but figuring out something will requiring amending the Constitution.

Good luck with that.

[treestar]

38. I'm for trying.

I would not sit still to allow a person to be above the law. No American should be for allowing it to stay that way. The President is not a King and is not above the law.

[treestar]

12. Where do they get the idea he can't be indicted?

Or, what is the precedent or point of law that backs that up?

It would make him above the law for the period of his term. The criminal law, no less, when he does have to answer to civil law.

[onenote]

15. Do you think the president can be criminally prosecuted while in office?

[treestar]

18. I would argue yes if there is evidence to indict. He

Ant be above the law. We have no interest in allowing someone to stay in the office no matter what they have done

[pnwmom]

25. Tribe isn't saying he can. He's saying he can be indicted by a Grand jury

but the prosecution of the indictment would have to wait till after impeachment and conviction in Congress.

[onenote]

26. Which would suggest that the "no one is above the law" argument doesn't apply

since it would be applying a different set of rules to the President than to anyone else.

As noted above, this is Tribe's opinion. Others of equal stature have a different view.

And at least as a matter of historical precedent, no sitting president has ever been indicted and the questions that such an indictment would present are not at all easily answered.

[pnwmom]

30. The President is already in a special position with regard to the law

because he can't be convicted in a civil or criminal court until he has been removed from office.

[onenote]

32. Actually, a president can be sued in federal court on a civil claim

Whether the president can be sued in a state court on a civil claim is an unresolved question.

[pnwmom]

33. He can't be tried in a criminal court until after he's removed from office.

If you say he can, then that means that he CAN be indicted and prosecuted while in office.

I'm saying he can be criminally indicted but the prosecution in a criminal court would have to wait till after impeachment and conviction in Congress.

[onenote]

34. I said "Civil".

I was responding to your statement that a president "can't be convicted in a civil or criminal court until he has been removed from office." I never said that a sitting president can be tried in a criminal court while in office and have no earthly idea why you think I said that.

A president can be sued in a federal court on a civil action. It is unresolved as to whether the same is true for state civil court actions. It also is unresolved as to state and federal criminal actions, although many scholars (including Tribe) believe a sitting president can't be convicted of a criminal offense while many also believe (but not Tribe) that a sitting president may not be indicted.

Hope that clarifies what I've been saying.

[bresue]

24. WHY DO WE HAVE TO WAIT SO LONG TO FIND OUT?

If there is an indictment on Dump? This just seems to be dragging on....when will the DOJ do something? It sounds like they have all the evidence they need....why continue to wait?

[onenote]

27. Maybe because there really isn't an indictment?

After all, weren't the first arrests supposed to be in mid-April?

Link to tweet

?lang=en


And then weren't there reports of imminent arrests last week or the week before? https://patribotics.blog/2017/05/11/exclusive-comey-day-first-trump-russia-arrests-possible-thursday/

[bresue]

29. I AGREE...

Stop placing information that is not true...even if the DOJ may be leaking info to stir up some heat under Dump...expecting he will misstep, but golly hasn't he misstepped enough for a foolproof indictment?

[Aristus]

35. Oh, for Heaven's sake! An impeachment IS an indictment!

That's what it is: the charging of a crime. That's why it has to go to trial afterwards, just like an indictment in a criminal case.

That's why people get so confused about Bill Clinton's impeachment; they thought that was grounds for removal from office. They forget that he was put on trial, and was acquitted.

[L. Coyote]

36. AND, it sounds like that has already happened.

Before the recent Trump obstruction of justices charges were piled on to the situation.

And before the illegal act of war added another impeachable offense.

And before the witness tampering added yet another one.

Trump's New Impeachable Offenses: Obstruction of Justice, Conspiracy, Abuse of Power