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Author Topic: Please explain why a sitting president cannot be indicted
PCmor
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I still can't wrap my mind around the idea that a sitting president can't be charged with a crime while in office.

Yes, I get that there's the concern that political adversaries might abuse that to short-circuit the chief executive's ability to perform his duties.

However, taking this to the extreme, in theory, wouldn't the president be able to actually murder someone and be free of arrest until he either was impeached or left office? To me, that seems absurd. It seems equally absurd that the president could commit battery. robbery, and any other crime without the fear of immediate repercussions, but, with the current interpretation, would that not be the case?

Theoretically, a president whose party controlled both bodies of Congress could go for years without being indicted for a crime. He could continue to hold office that entire time even if everyone knew he committed a crime.

Is that right, or am I missing something?

[ 07-26-2019, 12:04 PM: Message edited by: PCmor ]

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Dragonstone
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The matter has never been litigated by the courts for its constitutionality, but according to the Department of Justice, whose Office of Legal Counsel drafted the policy, the official argument is that:
quote:
The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.
DOJ's belief is that the proper way to deal with a president who has committed a crime is to first remove him from office via impeachment, and then criminally charge him after he has been removed from office.

There is a critical flaw in this approach, and that is the fact that it allows a president to theoretically ride out the clock on the statute of limitations. If Trump is not impeached and somehow gets re-elected, almost any potential crime he could be accused of in relation to the 2016 election would not be able to be prosecuted by 2025, which will be long past the expiration of the statute of limitations.

Nevermind the fact that on the way out the door, he is almost certainly going to try to issue blanket pardons for himself and every member of his family, and that mess will have to be resolved in the courts, and I wouldn't be surprised if it ended in a 5-4 ruling in his favor at SCOTUS (Roberts believes very much in a strong executive).

[ 07-26-2019, 12:31 PM: Message edited by: Dragonstone ]

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K. Fabian McClinch
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I can't quote the precise Constitutional wording, but my understanding is that the courts have [always? usually? traditionally?] ruled that a president must first be impeached, then then removed from office, in order to be indicted for a crime.

My (admittedly sketchy) understanding of the issue is that the debate right now is whether this applies only to crimes committed during his presidency, or if it also applies to crimes he committed before being elected, when he was still a common citizen. In T-Rump's case, since the crimes he's accused of occurred DURING the election, that would be the relevant argument.

The legalese gets a bit murky, but here's an article by Lawrence Tribe in which he attempts to address the issue:

https://www.lawfareblog.com/yes-constitution-allows-indictment-president

[ 07-26-2019, 02:11 PM: Message edited by: K. Fabian McClinch ]

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Crimson Mask from FL
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Re the statute of limitations argument, I could make a very strong counter-argument that the clock would be stopped for the time that he was in office, and will not start again until the day he no longer was.

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King Francis
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very similar to leaving a state to avoid prosecution?

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When I said that was the most ignorant thing I ever heard, I didn't realize you were still talking.

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OSJ from NM by way of WA
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I'd be all for Trumpy getting the Charles I of England treatment.

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"What you say sounds reasonable enough," said the man, "but I refuse to be bribed. I am here to whip people, and whip them I shall!")
-Franz Kafka - The Trial

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dthcm
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quote:
Originally posted by OSJ from NM by way of WA:
I'd be all for Trumpy getting the Charles I of England treatment.

No reason to be so harsh. I'm in favor of the doing to him what they did to Napoleon, sort of. Exile him to St. Helens.

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The Fake J.D. McKay
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quote:
Originally posted by Crimson Mask from FL:
Re the statute of limitations argument, I could make a very strong counter-argument that the clock would be stopped for the time that he was in office, and will not start again until the day he no longer was.

I have made that same argument for years, going back to Nixon, not ever realizing that there was going to actually come a time where it was more than a fear. This issue fits under Murphy's Golden Rule: Him that has the gold is the one that makes the rule.
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