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February 18, 2018


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"Crucially, however, the police only have the authority to recommend charges against [a target of investigation]. Under Israeli law, the final decision whether to bring charges rests with the attorney general ... . "

Is this not our rule too, especially with respect to persons who DO NOT hold executive offices?

Anthony Gaughan

Yes, that is a great point!


And when the political branches refuse to consider accountability actions, no matter how blatant the misconduct?

Anthony Gaughan

Yes, I think the analysis remains the same. But if the House of Representatives ignores clear evidence of criminal wrongdoing by a president, I do believe there will ultimately be accountability at the ballot box during the next election cycle.

Deep State Special Legal Counsel

The President shouldn't be indicted unless the case is pretty damn strong...nothing less than a smoking gun in his hand, not even circumstantial evidence or any "ham sandwich" bullshit by an angry Democrat prosecutor. Indicting the President means overturning nothing less than an entire election. Remember, the jury spoke, and it is never wrong.

J. Bogart

Art. I SEC.3 does not seem to address timing of a criminal indictment. It says impeachment is not a bar to indictment or other criminal proceedings. That is double jeaopardy point.

Anthony Gaughan

Thank you for your comment, J. Bogart. I think Art. I, Sec. 3 does speak to the timing of an indictment because it uses the past tense "convicted" in the second clause. The use of the past tense "convicted" indicates that only after the president is convicted by the Senate may a criminal indictment be brought (and, as you say, the clause also removes any concern over double jeopardy).

Indeed, the timeline laid out in Section 3 (Senate conviction first, criminal prosecution later) is exactly the approach taken during Watergate. The Watergate Special Prosecution Force developed direct evidence of President Nixon's obstruction of justice (i.e. John Dean's testimony in the summer of 1973 combined with the disclosure of the smoking gun tape in the summer of 1974), but did not indict Nixon. Leon Jaworski waited for the impeachment process to go forward first.

As Jaworski and the WSPF waited, the House Judiciary Committee recommended 3 articles of impeachment to the full House in July 1974.

Of course, Nixon resigned on August 9, beating the House to the punch.

But here is a crucial point: Nixon resigned not because he feared a federal indictment while he was still in office. In fact, he all-but-welcomed a pre-impeachment indictment because he knew it would mean that the prosecutors had overplayed their hand, and it would give him the opportunity to turn the whole matter into a new and different Constitutional dispute over the separation of powers (as opposed to being over Nixon's own abuses of power).

The reason why Nixon resigned on August 9 is because a few nights before, Senator Barry Goldwater had told Nixon in a a dramatic, face-to-face meeting in the White House that there were simply not enough pro-Nixon votes remaining among the Senate Republican caucus to prevent the president's conviction in the Senate trial.

But once Nixon vacated the office of president, the way was clear for prosecutors to indict him. That is, until September 8, 1974, when President Ford pardoned Nixon, which forever barred prosecutors from indicting Nixon for his Watergate crimes.

So I do think that the historical practice has been to view Art. I, Section 3 as establishing a timeline of prosecution. First, impeachment by the House, then conviction by the Senate, and then finally prosecution in an Article III court. Had Nixon not resigned, and had Ford not pardoned Nixon, the timeline in Article I, Section 3 would have played out like clockwork.

Anthony Gaughan

Thank you for your comment, Deep State Special Legal Counsel. I share your concern over the countermajoritarian implications of a pre-impeachment presidential indictment. Indeed, that is one of the reasons why I think the Article I impeachment process and the 25th Amendment must be the exclusive means of removing a president from office.

J. Bogart

Thanks for the response.
Two points, in reverse order. 1. Given the odd structure of election for president, countermajoritarian concerns are hard to credit. The voter majority is not what elects a president.
2. I get your argument, except the claim that there is a temporal order set out in text. The text does not say it. I agree it is a very bad idea to indict before impeachment, assuming term in office tolls limitations, as your argument would suggest.
As for a number of topics, the Constitution is poorly drafted.

Anthony Gaughan

I think you make great points, J. Bogart. But I think countermajoritarian concerns are still valid even though the president is not elected by a nationwide popular vote.

The key point is the presidency is determined by a majority of the Electoral College, which in turn is decided by a majority (or at least a plurality) of the voters in each of the 50 states (plus the District of Columbia).

So even though the Electoral College does not involve a nationwide popular vote, majoritarian principles nevertheless inform its operation.

I would hasten to add, however, that I am a critic of the Electoral College. In my view, it is an archaic and dysfunctional system for electing the president. I would love to one day see a nationwide popular vote for president.

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