"A sitting President cannot be indicted"

[SHRED]

Is this based in fact or is it a speculation?

[DavidDvorkin]

1. I thought it was DOJ guidelines

If that's all it is, it can be changed quickly enough.

[Polybius]

2. And what if he's indicted and doesn't show up?

Police/bounty hunters can't just arrest a President. The Secret Service can legally shoot anyone attempting to do just that.

[Sanity Claws]

6. Then he can be tried in absentia

[marylandblue]

15. He probably won't have to show up for booking.

They'll just proceed with his attorneys handling everything. If it is necessary to compel his appearance, the court would order the Secret Service to bring him in.

[Polybius]

24. Only the President can order the SS, they take orders from him and him only

He could just tell the court "come get me."

[marylandblue]

25. All federal employees take a loyalty oath to the Constitution, not the President

The Secret Service obeys all valid orders wherever they come from. They are not Trump's personal army.

[Polybius]

32. The only thing they can do is ignore any of his orders that they feel is illegal

Because you're right that they take an oath to protect the Constitution. However with regards to a court-order, the President has the final order. Unless they think it breaks the oath, they will follow it.

[marylandblue]

36. It is illegal to disobey a court order. Disobeying a court order violates the oath.

[Polybius]

41. The court has no authority to order them to bring in a President

The only thing they can do is tell one of the SS Agents to come in, if he or she has been charged with something.

[marylandblue]

44. The law speaks for itself

18 USC 3041

For any offense against the United States, the offender may, by any justice or judge of the United States, or by any United States magistrate judge, or by any chancellor, judge of a supreme or superior court, chief or first judge of the common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where the offender may be found, and at the expense of the United States, be arrested and imprisoned or released as provided in chapter 207 of this title, as the case may be, for trial before such court of the United States as by law has cognizance of the offense.

18 USC 3052
The Director, Associate Director, Assistant to the Director, Assistant Directors, inspectors, and agents of the Federal Bureau of Investigation of the Department of Justice may carry firearms, serve warrants and subpoenas issued under the authority of the United States


18 USC 3056
(a) Under the direction of the Secretary of Homeland Security, the United States Secret Service is authorized to protect the following persons:
(1) The President, the Vice President (or other officer next in the order of succession to the Office of President), the President-elect, and the Vice President-elect.

[Polybius]

54. Nowhere does it say a judge can order the SS to take a President somewhere he doesn't want to go

He would simply override them, or the case would go to the SC and they would say the judge overstepped his authority.

It's all moot point anyway, because the SC will likely say that a President can't be indicted.

[marylandblue]

55. It says judges issue arrest warrants and the FBI executes them

If the FBI shows up at any federal office with an arrest warrant, security does not engage in a shootout, they let them in and do what they want. Judges can certaintly issue warrants for any SS agent that blocks the FBI.

You are right, this is all going to the SCOTUS. I don't know how it will rule, but it's if not in the President's favor, it certaintly won't rule that it's ruling is unenforceable.

If you really think the SS will act as you say, the we should just cut the crap, rename it the Praetorian Guard, and declare the reign of Emperor Donald Caesar August I.

[Polybius]

61. True, but...

Yes, security don't engage with FBI at federal buildings, but they never have tried to arrest a President. Glad you agree now that it won't be the SS that the judge gives the order to, it would be to either the FBI or Federal Marshals.

Anyway, let's put this aside. I've got a better one one for ya. Let's say Trump Jr. or Jared (or both) are indicted. Let's say they don't show up, and word gets out that Trump is hiding them. Can a warrant be issued to search the White House?

[marylandblue]

62. "Nobody is above the law"

Either we believe that or we don't. It doesn't matter if it's the FBI or the SS or whoever is supposed to execute the order, it only matters that the law is obeyed. If we do believe that nobody is above the law, then a judge in the lowest court in the land can issue a warrant against the most powerful person in the world, and his order will be duly appealed or obeyed.

If we don't believe that anymore, that's very unfortunate, welcome to life under mad King Donald.

[Polybius]

63. If the SC says that a President can't be indicted, then "Nobody is above the law" is a myth

We'll likely soon know. As for the search warrant on the White House, that would get real interesting.

[marylandblue]

64. Yes, that's correct, if they say that, it's all over

But I don't think they will say that.

[Hermit-The-Prog]

30. not quite

https://www.secretservice.gov/protection/

And

(g) The United States Secret Service shall be maintained as a distinct entity within the Department of Homeland Security and shall not be merged with any other Department function. No personnel and operational elements of the United States Secret Service shall report to an individual other than the Director of the United States Secret Service, who shall report directly to the Secretary of Homeland Security without being required to report through any other official of the Department.

https://www.law.cornell.edu/uscode/text/18/3056

[pnwmom]

39. Right. It would depend on how loyal the DOJ decides to be to DT.

And then the SCOTUS.

[Garrett78]

3. It's nowhere in the Constitution, as far as I know.

[WheelWalker]

4. It's based on an opinion which, as we know, is like an asshole... everyone's got one.

[The Velveteen Ocelot]

5. It's based on a DoJ and OLC policy formulated during the Watergate proceedings,

and based on legal analyses concluding that it would probably violate the Constitutional principle of separation of powers. But the law isn't settled at all.

The first OLC memo was issued on September 26, 1973, not long before the October 20 “Saturday Night Massacre,” in which Nixon directed officials of the Justice Department to fire special prosecutor Archibald Cox, and the top two Justice officials resigned, leaving the dirty work to then-Solicitor General Robert Bork.

That memo considers the Constitution’s text and finds no answer. It says, correctly, that there is no “airtight separation of powers, but rather … a system of checks and balances, or blending the three powers.” The Constitution provides very limited immunities for members of Congress and none for the president. The impeachment clause says that any official impeached can be tried—at least, but not clearly only, after removal. The debates during the framing and ratification of the Constitution suggest that the president is subject to laws like any citizen, but never discuss prosecution in office. During the trials of Aaron Burr, Chief Justice John Marshall had insisted that Thomas Jefferson was subject to subpoena—but also that as president he could refuse to attend court in person, and could withhold some evidence.

Left with no clear sources, the Justice Department lawyers asked what answer would best serve the nation. An indictment in office would besmirch the “symbolic head of the nation.” In addition, “only the president can receive and continuously discharge the popular mandate expressed quadrennially in the presidential election,” making an indictment or trial “politically and constitutionally a traumatic event.” Impeachment is the first line of defense against presidential misconduct, the author noted. “This would suggest strongly that … criminal proceedings against a President in office should not go beyond a point” that they would effectively remove a president, and thus become a short-cut for impeachment.

Much more discussion here: https://www.theatlantic.com/ideas/archive/2018/05/presidential-indictment/560957/

[marylandblue]

16. This isn't even an actual policy, it's an opinion of the Office of Legal Counsel

Grand Juries actually indict, not DOJ, although a DOJ Attorney has to sign the indictment. So if Mueller signs an indictment despite the OLC's opinion, is it valid? Trump may use that as an excuse to fire Mueller and get the charges dropped, but that may just seal his fate politically. If charges are not dropped, he'd file a motion to quash, which the SCOTUS would rule on.

[uponit7771]

17. +1, NOT policy and the OLC was trying to help Nixon at the time IINM

[Progressive Jones]

23. It's not law, and is meaningless to anyone but the guilty.

Trump will be brought to justice, one way or another.

[The Velveteen Ocelot]

48. The question will go to the Supreme Court

and it's anybody's guess what they, or a majority of them, will do with it.

[Poiuyt]

33. Thank you. I had been wondering about the history of that.

[elocs]

7. I'm sure the Supreme Court will decide that question.

Now how might this Supreme Court rule on that?

[gldstwmn]

60. After today's Planned Parenthood ruling

I can't say. I can see Thomas and Scalia against. Would Kavanaugh have to recuse?

[Codeine]

8. It would be a landmark legal struggle

that would end up, one imagines, at the Supreme Court. I can’t see how that ends well for our side, tbh.

[Grasswire2]

28. but there is a strategic reason to proceed with indictment ASAP. See below in the thread. nt

[Turbineguy]

9. I think that "sitting"

is only valid when he's on the can.

[The Velveteen Ocelot]

10. That would be a shitting president.

Also a shitty one.

[Fullduplexxx]

11. And here i thought no one was above the law

[Roland99]

12. It is NOT constitutionally barred. Purely an optional decision laid down by the DoJ

[Charlotte Little]

13. Expect that to be the next fight

Link to tweet

[superpatriotman]

14. All roads lead to the Supremes

John Roberts - as I've unpopularingly argued here - is likely the deciding vote on whether or not the commander in chief is above the law.

But I am certain that laws will be written and changed, amendments amended and all doubts sorted out before a Democrat wins the White House again.

[unblock]

18. imho, it's extremely unlikely to be upheld even by this court.

whether a federal indictment can then *proceed to trial* is the more interesting question.

imho, an indictment, in and of itself, doesn't interfere with presidential duties, so i can't see the legal or constitutional argument for not allowing an indictment.

proceeding to trial, that's a whole different ballgame, because that arguably does take away from the time and attention needed for the president to perform constitutional duties. that argument has been largely undercut by the jones v. clinton case, in which a *civil* case against a sitting president was allowed to proceed, but i suppose there may be some arguments as to why a criminal case puts a different burden on the defendant and that might be enough to make the difference.

so i think, in the end, a sitting president could be indicted, but might be able to delay any trial until out of office.

[avebury]

43. In the case of Trump, an argument could

be made that he is really not working that much so a trial doesn't really impede his Presidency, just his tv and golf time.

[unblock]

47. In his case, an argument could be made that

interfering with whatever "work" he does would actually be the better way to serve the constitution's interests.

It would certainly promote the general welfare....

[Muskiteer]

19. Top Democrat: Constitution allows Trump to be indicted while in office

Nader said that Trump could be indicted while in office!

Top Democrat: Constitution allows Trump to be indicted while in office
by Naomi Lim
December 09, 2018
Washington Examiner

Rep. Jerry Nadler, D-N.Y., doesn't buy Justice Department guidelines that suggest a sitting president can't be indicted.

"I disagree with the Office of Special Counsel and the Department of Justice: There is nothing in the Constitution that prohibits the president from being indicted," the likely next chairman of the House Judiciary Committee told CNN Sunday. "This country originated in a rebellion against the English king. We did not seek to create another king. Nobody, not the president, not anybody else, can be above the law. There's no reason to think that the president should not be indicted."

Nadler added that either way, a president can be indicted after they leave office.

https://www.washingtonexaminer.com/news/top-democrat-constitution-allows-trump-to-be-indicted-in-office

[JonLP24]

20. It is something that could be taken to the Supreme Court

There are articles out there the most likely scenario is Mueller gives a report to Rosenstein (if he still there) and it would be up to him to hand it over to Congress if there are crimes directly implicating him.

[roamer65]

49. You are correct.

[Buckeyeblue]

21. That's why we have impeachment

We can indict as soon as they are no longer president. First, impeach and convict. Then once removed, proceed with the indictments.

I think if we take a long view of the process, it is best.

Remember, Bill Clinton's perjury didn't go away. He agreed to a deal with prosecutors so he wouldn't be indicted when he left office.

45 already has two waiting for him. Let's start piling them up.

[Grasswire2]

27. No.

See below.

A long view of the process allows him the presidency again.

[Drunken Irishman]

22. Not fact as in any ruling but there's truth to it...

There's a reason the constitution set up impeachment. That's essentially the way the government handles abuse of powers and criminal activity of a president while he's in office. It sounds trash to say but in this regard, the President may be above the law.

The problem we're dealing with here is that we certainly have a Senate that won't vote to remove the president from office if the House impeaches. So, we'll enter a stalemate until he either loses reelection or his second term ends. If it's the latter, it means he won reelection despite the fact he was facing potential criminal prosecution after he left office but that would tell me the case was not strong enough to sway public opinion. If it's the former, well then he's fucked because the country kicked him out of office in 2020 and now he has no presidential powers.

This is why I'm not convinced Trump will abandon running for a second term. He knows he needs the presidency to protect him. That or the damage will be so evident, he'll strike a deal with the prosecution to avoid indictment after he's out of the White House and likely resign from office or announce he won't run for reelection.

I do believe they will attempt to indict him and this will move to the Supreme Court where they'll rule you can't indict a sitting president and basically the level of the charges wil dictate how the country proceeds and we'll get to see what scenario I outlined above takes place.

[Grasswire2]

26. It is just an opinion, and it's time to test it through the courts with an indictment.

There is a strategic reason to do so, even if the matter is lost at SCOTUS.

An indictment now would lay out all of the evidence of his criminal enterprise and that could likely pre-empt a campaign for 2020.

Waiting to indict him when he is out of office allows him to run for 2020 under the same false status as he did in 2016 (when feds knew he was corrupted but did not release the info).

Do it. Write it. Clearly and openly. No redactions.

Now.

[Deb]

29. What right does the Presidency hold to overturn any grand jury decision of his/her peers?

Seems to me that is the question we should be asking. Of the two who stands on higher legal ground in this case?

[LiberalFighter]

31. DOJ has a conflict of interest since their "boss" is the President.

They likely created the policy to avoid being put in the position of prosecuting him.

[jberryhill]

35. Hence independent counsel

I’ll have to dig up my paper on Morrison v Olsen sometime. I got the highest grade in that class from Joe Biden.

[duforsure]

51. Not really

That could be said of many others that have been indicted working for the DOJ in many different positions, and the president is the top cop , and can be legally gone after in civil suits, so the same should apply to criminals actions , including impeachment. Wasn't Agnew indicted? Why shouldn't any person in OUR government be held accountable in our judicial system for committing crimes and not him? He's not above the rule of law , which is the judicial branch of our government that also should be able to hold EVERYONE accountable .
If not we have a major problem , and more will expand their corruption and criminal behaviors against us.

[jberryhill]

34. It has never been tested

This question gets asked a lot.

The answer is whatever 5 people on the Supreme Court day it is.

One can do a lot of analysis to guess what at least five of them might see, but that is not the same as knowing the answer.

[alwaysinasnit]

45. If in fact a sitting president can't be indicted, conversely then, wouldn't there be a valid

argument that any statute of limitations be tolled?

[jberryhill]

46. That's easy

[dlk]

37. This Idea is Nothing More Than Opinion (and Wishful Thinking)

There is nothing in the Constitution that prohibits a sitting president from being indicted. Neither is there any case law precedent that prohibits a sitting president from being indicted. This idea is nothing more than political spin by those attempting to protect a criminal who is attempting to act in the manner of a dictator or king and not the leader of a democracy.

[avebury]

38. I don't think that there is actually anything that would

legally prohibit indicting a President. The US Constitution does not prohibit it. The US Congress has never passed a law prohibiting it. A DOJ policy is just that, a policy.

A policy is a deliberate choice to do nothing, even if they have proof that a President has committed a crime while in office. To me that would make the DOJ an accessory after the fact if they choose to look the other way.

I would love to see a State AG with a solid case file criminal charges against Trump. All the State AG has to say is, show me where in the law that states I am prohibited from filing criminal charges against a sitting President that I have a Grand Jury indictment on? Show me where, in the law, that I would be prohibited from filing obstruction charges from any entity that tries to interfere in our case.

A policy, in the absence of a law or statute or a statement supporting it in the US Constitution, does not have the effect of law in my humble opinion.

I am not an attorney but it seems like a pretty good case could be made that there is nothing to prohibit a sitting President from being indicted for criminal activity.

I just don’t understand why so many in msm fall on the premise that a policy decision holds the effect of law.

[thesquanderer]

56. re:"To me that would make the DOJ an accessory after the fact if they choose to look the other way."

The DOJ always has a choice as to whether to prosecute something or not. Thy can claim limited resources, uncertain outcome, etc. Choosing not to prosecute does not make them complicit.

[avebury]

57. We can agree to disagree.

If the DOJ has a strong case that would result in the prosecution and conviction of anybody else but they choose not to prosecute the President because he is the President - that is just not a good enough reason. They take an oath to uphold the US Constitution and to uphold the law of the land. Their oath of office does not include that they will uphold the law of the land, except when it comes to the President.

Why even have a legal system if it is not used uniformly and justly?

[HipChick]

40. Says Who?

[img]?itemid=11217172[img]

[Jarqui]

42. The gist of what I have gathered is that a president can be indicted

but they do not want him to have to confront that while serving his term.

So they can seal the indictment until he leaves office.

In preparation for the possibility that Trump could have Mueller fired, it has been suggested that some of the sealed indictments Mueller has prepared are for Trump

[Freelancer]

50. If a sitting pres can't be indicted, get him when he stands up -nt

[FakeNoose]

59. Or wait until he leaves the men's room

[Vinca]

52. It's a self-imposed DOJ rule and it needs to be tested in court.

The courts have said it's perfectly fine for civil cases to proceed and they can be as time consuming as criminal cases. In any case, Don spends most of his day watching television or golfing so he's got all the time in the world to devote to his defense.

[LiberalFighter]

53. Especially when the lawyers would be doing most of the work.

[gldstwmn]

58. no matter how this plays out

he will have to be dragged out of the White House. I hope whatever government agency has to do that job has some sort of plan in place as to how they are going to deal with this. I'm not kidding. Who would do it? The FBI?