The Jury Talks Back


A short explanation for my absence from Patterico’s [Guest Post by Dana]

Filed under: Uncategorized — Patterico @ 9:18 pm

[Guest post by Dana]

This is just an update for those who have asked where I’ve disappeared to. I’m currently facing some physical limitations that make posting a no-go at this time. I am hopeful that I will be able to return to posting sooner rather than later. (Of course with the high-quality, insightful posts from our host, me talking about posting is rather silly.) For now, though, I am focusing my energies on getting better. It is a non-life threatening matter, and pales in comparison to what some commenters are enduring. But it is what’s on my plate now, and something that must be addressed. Recently a friend sent me a beautiful handcrafted card with a reminder that I am living by these days: “When my heart is overwhelmed, lead me to the rock that is higher than I.” Psalm 61:2

So, onward and upward I go.

— Dana

Could Trump Be Prosecuted for Shooting James Comey While Still in Office?

Filed under: Uncategorized — Patterico @ 8:01 am

Rudy Giuliani says no:

Candidate Donald Trump bragged that he could shoot someone on New York’s Fifth Avenue and not lose any support, and now President Donald Trump’s lawyer says Trump could shoot the FBI director in the Oval Office and still not be prosecuted for it.

“In no case can he be subpoenaed or indicted,” Rudy Giuliani told HuffPost Sunday, claiming a president’s constitutional powers are that broad. “I don’t know how you can indict while he’s in office. No matter what it is.”

Giuliani said impeachment was the initial remedy for a president’s illegal behavior ― even in the extreme hypothetical case of Trump having shot former FBI Director James Comey to end the Russia investigation rather than just firing him.

“If he shot James Comey, he’d be impeached the next day,” Giuliani said. “Impeach him, and then you can do whatever you want to do to him.”

First of all, the assumption that Trump would automatically be impeached if he were guilty of an act is not immediately obvious. The tendency of Trump’s supporters when he does something wrong is to rally around him, rather than impose consequences on him. Every criminal defendant has a defense, and sufficiently motivated people can be convinced to accept any defense. If O.J. Simpson taught us anything, it is that no amount of evidence and logic can overcome the mixture of identity politics and fame. Inject politics into the mix and the brew is even more potent.

Are we to assume that the right half of the party would suddenly abandon its habit of defending Trump on literally any point, no matter how flimsy, simply because he committed a murder? Keep in mind: Democrats and Big Media would almost certainly be saying that he committed the crime, and that he should be removed from office. That alone would be enough to trigger reflexive disagreement in the lizard brains of many partisans — disagreement that literally no amount or quality of evidence could overcome. I can hear, in my mind, the rationalizations of the partisans even now: “Didn’t Obama drone U.S. citizens? What president hasn’t murdered people? This is just the left’s way of undoing an election!” These partisans vote, and if the polls showed lawmakers that removal was not a solid plus, getting the necessary numbers in the Senate for removal might not be certain.

But let’s put all that aside for a moment and look at the most relevant precedent we have: Clinton v. Jones. Several passages in that decision suggest that the Supreme Court would not hold Trump above the law for a personal act (and possibly even for an official act, if one can imagine such a thing) of shooting James Comey. Here are two passages that suggest that prosecution for a personal act would almost certainly be permitted:

With respect to acts taken in his “public character”– that is official acts–the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts.

. . . .

Whatever the outcome of this case, there is no possibility that the decision will curtail the scope of the official powers of the Executive Branch. The litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial power or executive power.

It would be incorrect to read this language, however, as clearly stating that Trump is beyond the reach of the courts in all cases where he takes official action. In other words, could Trump order the federal government to drone James Comey, and take refuge in the notion that this was an official act that removes him from the judgment of the courts? I doubt it. As Justice Stevens explained — speaking for a unanimous court, the courts have often made determinations regarding the president’s official actions as well:

First, we have long held that when the President takes official action, the Court has the authority to determine whether he has acted within the law….Second, it is also settled that the President is subject to judicial process in appropriate circumstances….Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty….If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct. The burden on the President’s time and energy that is a mere by product of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions.

In the context of Clinton v. Jones, which was a private matter, Justice Stevens was making the point that if the judiciary can decide official questions in many cases, it can certainly decide unofficial ones.

Keep in mind: governors have been indicted by state prosecutors (Rick Perry being a glaring and absurd example) and I am not familiar with any decision that says this cannot happen on state constitutional grounds of separation of powers.

This is not to say that Giuliani’s argument is insane. Some agree that a president cannot be criminally prosecuted. For a law student’s detailed argument to that effect, see here. The arguments include the notion that the President is different, since he, as one person, embodies an entire article in the Constitution. Vincent Bugliosi made a similar argument in his book No Island of Sanity.

But the Supreme Court had a different view, and the Supreme Court is the final arbiter in our system. And based on its decision in Clinton v. Jones, I suspect they would allow a prosecution even before an impeachment.

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