Will it really be possible to prosecute Bush for crimes committed

[JDPriestly]

while in office if he is not impeached while in office? It ain't necessarily so.

The U.S. Constitution states at Article I, Section 2

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

http://www.usconstitution.net/const.html#A2Sec1


I am unfamiliar with the website on which I found the following article and therefore leery about trusting the author's statements, but this article states that there is no precedent providing with any certainty that a president can be tried in a court of law after leaving office unless he or she has first been impeached.

. . . .

Nevertheless, sequentialists maintain that the president is immune from criminal process during his presidency because he represents the entire executive branch. If the president were indicted, it would hinder his ability to represent the country, and if the president were convicted and sentenced, well, you get the picture. Opponents point out that presidents have survived worse inconveniences. They also point out that the Constitution provides that "In Case of the Removal of the President from Office, or on his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office," the vice president takes over. Non-sequentialists, then, find arguments based on the Constitution, its history, and the nature of the presidency unconvincing.

That's where the legal trail ends. No court has decided the question. The view of the executive branch is clearer. In 1973, the Office of Legal Counsel and then-Solicitor General Robert Bork adopted the sequentialist interpretation – but only for the president. All other federal officers, the OLC contended, were amenable to criminal process. When Vice President Agnew was investigated by a grand jury soon afterward, he asked a court to stop the grand jury proceedings, arguing essentially, "Hey! I'm the vice president. You can't prosecute me." In a memorandum filed with the court, Bork argued that the vice president was subject to indictment and prosecution but the president wasn't. Bork's reasons for the distinction were mostly pragmatic: The president is too busy, and it would weaken him as a representative in foreign relations if he were embarrassed by a trial.

After Bork gave his opinion, the Supreme Court answered a few questions about presidential privilege and presidential immunity. First, the court decided U.S. v. Nixon, as we've already discussed. In two cases involving a sexual harrassment claim brought by Paula Jones, the court recognized that the president enjoys immunity from liability for his official acts but can be sued while still in office for unofficial acts (i.e., that weren't part of his job). Some think this undercuts Bork's reasoning. But in 2000, during Kenneth Starr's investigation of the Monica Lewinsky matter, the Office of Legal Counsel reaffirmed its position.

http://www.straightdope.com/mailbag/mprezarrest.htm

I believe that Congress must impeach Bush if it wishes to insure the right to prosecute him at a later time. There is no way that Alito, Roberts, Thomas, Scalia and possibly Kennedy will permit the prosecution of Bush unless he has been impeached. DUers, please abandon the foolish idea that you can rely on a criminal prosecution of Bush after he leaves the presidency.

Not only will their be no criminal prosecution of Bush after he leaves office, but Bush will claim executive privilege as to his documents and the testimony of administration witnesses and, unless Bush is impeached and impeached now, he will simply walk away from his crimes.

Here is a sample from an article that presents arguments supporting the idea that a president need not be impeached to be indicted in a criminal matter and arguments that oppose that same idea. This is an excerpt from the testimony of SEN. ROBERT TORRICELLI (D-NJ) at a hearing on this issue in the context of the Clinton impeachment:
....
It is my judgment, rather, that the Constitution provides that the House of Representatives provide for impeachment, the United States Senate sit in judgment, as a condition precedent to someone who occupied the presidency of the United States appearing before the criminal law; that any indictment would have to follow impeachment and an action by the United States Senate to remove a person from the presidency.

I believe this interpretation, based on these historic accounts, interpretations though limited to date, because I believe the founding fathers not only shared this judgment that criminal activity by a president was an offense generally against the body politic, that a political body must sit in judgment, but that they also understood that proceeding with a criminal trial against a president of the United States without impeachment would not only involve a problem with the separation of powers, a potential conflict between the divisions of the United States government, but also a potential paralysis of the government itself.

Indeed, it could be argued, if they did not have this concern and did not share my interpretation, why it is they would not have provided for the courts themselves to sit in judgment of a president and impeachment. There was no reason to give this power to the House of Representatives and then the United States Senate rather than the Supreme Court or some other tribunal of the federal courts other than an expression of concern about this conflict and the potential paralysis.
. . . .


http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/paneltext090998.htm

One thing is sure: Congress cannot rely on the idea that the next president and attorney general can prosecute Bush once he is out of office whether or not he was impeached while in office. If Congress does not impeach Bush (and also Cheney) then it is possible that they will never be called to justice. The risk of not impeaching Bush is very serious. It will probably foreclose the opportunity to ever set the record straight or to punish him for his grave misdeeds.

Please don't think that the next attorney general can prosecute Bush if he has not already been impeached by Congress. That ain't necessarily so. It ain't necessarily not so either, but do we want to take the risk?

Impeach Bush now.

[bowens43]

1. Bush is not going to be impeached.

if he was impeached, he would be acquitted. If he committed crimes, he can be charged after leaving office. Just because there's no precedent , doesn't mean it can't or won't happen. NIxon probably would have been charged if he had no been pardoned.

[JDPriestly]

6. I am saying that I do not believe that the president can

be tried by the courts for crimes that he commits in his official position unless he has been impeached first. Alexander Hamilton, in Federalist Paper No. 65 states that the Congress, not the Courts are the proper venue for trying the kinds of crimes that a sitting president commits. This feature was borrowed from the British system. Read my post.

This is an excerpt from the testimony of SEN. ROBERT TORRICELLI (D-NJ) at a hearing on this issue in the context of the Clinton impeachment:
....
It is my judgment, rather, that the Constitution provides that the House of Representatives provide for impeachment, the United States Senate sit in judgment, as a condition precedent to someone who occupied the presidency of the United States appearing before the criminal law; that any indictment would have to follow impeachment and an action by the United States Senate to remove a person from the presidency.

I believe this interpretation, based on these historic accounts, interpretations though limited to date, because I believe the founding fathers not only shared this judgment that criminal activity by a president was an offense generally against the body politic, that a political body must sit in judgment, but that they also understood that proceeding with a criminal trial against a president of the United States without impeachment would not only involve a problem with the separation of powers, a potential conflict between the divisions of the United States government, but also a potential paralysis of the government itself.

Indeed, it could be argued, if they did not have this concern and did not share my interpretation, why it is they would not have provided for the courts themselves to sit in judgment of a president and impeachment. There was no reason to give this power to the House of Representatives and then the United States Senate rather than the Supreme Court or some other tribunal of the federal courts other than an expression of concern about this conflict and the potential paralysis.
. . . .


http://www.washingtonpost.com/wp-srv/politics/special/c...

[KharmaTrain]

2. That's What DeFacto Impeachment Is About

People here live in an all or nothing at all world regarding impeachment...without seeing what options are realistically available. Chairman Conyers has spoken about DeFacto impeachment as being the ultimate result of the many investigation his committee and others are and will be holding. We've just started to learn about the muck...there's a lot more to come.

IRC, thanks to Paula Jones, a President can't be sued for his actions in an official capacity, but can still be libel in a civil suit. Now I'm not sure if that immunity follows after he/she leaves office, but if it did, then why did Ford need to pardon Nixon?

The question should be if boooosh and cheney committed war crimes...violations of international law...and that in their roles as head of this regime they are held culpable. Or there could be civil suit for wrongful deaths or some other class action that could dog these dogs for years.

Once again...impeachment does little to address the crimes or those who committed them. It's a political process. Defacto impeachment also is political but it goes a long way to rectify the political crimes and misdemeanors but it doesn't go after all those who committed crimes.

The next AG may not go after booosh and cheney, but an Independent Prosecutor can. Jonathan Turley offered that suggestion the other night...a first act by a President Obama.

Bottom line is there will be no impeachment...the votes aren't there. Pissed off? Then help remove the enablers...in both the Senate and in the Executive.

I'm more concerned with this regime pardoning itself out the door...the less indictments now, the less immunity we'll have to deal with.

[JDPriestly]

5. Did you read my post at all?

Have you ever read the Federalist Papers, No. 65? I think that it is very likely that a court, especially this Supreme Court, would decide that a president MUST, I repeat MUST be impeached before that president can be tried for crimes committed while in office.

And please note the Congressman who argued that you have to impeach a president first is a Democrat.

Read this again, please:

This is an excerpt from the testimony of SEN. ROBERT TORRICELLI (D-NJ) at a hearing on this issue in the context of the Clinton impeachment:
....
It is my judgment, rather, that the Constitution provides that the House of Representatives provide for impeachment, the United States Senate sit in judgment, as a condition precedent to someone who occupied the presidency of the United States appearing before the criminal law; that any indictment would have to follow impeachment and an action by the United States Senate to remove a person from the presidency.

I believe this interpretation, based on these historic accounts, interpretations though limited to date, because I believe the founding fathers not only shared this judgment that criminal activity by a president was an offense generally against the body politic, that a political body must sit in judgment, but that they also understood that proceeding with a criminal trial against a president of the United States without impeachment would not only involve a problem with the separation of powers, a potential conflict between the divisions of the United States government, but also a potential paralysis of the government itself.

Indeed, it could be argued, if they did not have this concern and did not share my interpretation, why it is they would not have provided for the courts themselves to sit in judgment of a president and impeachment. There was no reason to give this power to the House of Representatives and then the United States Senate rather than the Supreme Court or some other tribunal of the federal courts other than an expression of concern about this conflict and the potential paralysis.
. . . .


http://www.washingtonpost.com/wp-srv/politics/special/c...

Sorry, but you are not being realistic.

[fasttense]

3. There are a whole lot of other people besides the President who broke the law

and should be tortured, I mean prosecuted.

[slipslidingaway]

4. kick for later n/t

[Octafish]

7. Impeach them both now.

Prosecute the living hell out of them.

I'd purge and investigate and indict and imprison ALL of their henchmen and henchwomen appointed to the Federal bench. After all, a judge appointed by a crook would also be a crook. Same goes for the crooks they've appointed to jobs throughout the Bureaucracy.

You've done an excellent job of explaining the importance of impeaching now, JDPriestly. It's not worth the risk of losing the opportunity to expose the corrupt and their corruptions in office. And as Adlai Stevenson said, "Corruption in office is treason." Only by repelling the assault of the Unitary Executive and pushing back their usurpations can we restore Congress as an equal branch of the Government. And that, too, requires impeachment.