For all of the talk about the DOJ opinion that states a sitting President cannot be indicted,

[guillaumeb]

that makes no sense.

Let me state that I am not an attorney, nor am I an expert on the Constitution, but consider one thing before you argue that the DOJ opinion should be definitive on the subject of indicting a sitting President.

The President cannot exist above the law because the President only exists because of the law.

Prior to the Constitution being adopted, there was no US President. The position of President was created by the Constitution and the associated laws regarding the office.

So it stands to reason, speaking philosophically, that the creation cannot be above what created it.

Thoughts?

[abqtommy]

1. I'll support that reasoning!

[guillaumeb]

2. In England, the Magna Carta restricted the rights of the English kings.

SO if one says the President is above the law, or immune from it, the President must be higher than a king.

[jberryhill]

3. The DOJ position is not what you are stating it to be

Simply put, the DOJ position is not that the president is “above the law”.

The DOJ position is that Congress would have to impeach the president in order to render the him or her subject to indictment.

The president is elected. Congress is elected. Prosecutors are not elected. At bottom, the position contrary to the DOJ policy is to say “we want unelected persons to have the ability to lock up elected ones.”

Under the right circumstances, that too is a recipe for tyranny, and it is the logic behind putting an elected body in control of whether the president can be subject to indictment, instead of an appointed official elected by no one.

[guillaumeb]

6. Reply # 4 seems, to me, to contradict what you wrote.

If the DOJ position is that a sitting President cannot be indicted because it would impair or interfere with the President's ability to carry out the job, that would mean a prosecutor could not indict a President. And that would put the President above the law that created the position of President.

[jberryhill]

16. The law that made him president...

...is the Constitution.

The Constitution provides the ability for the president to be indicted if he or she is first impeached and removed from office by Congress.

Diplomats are not “above the law” either, but the law certainly makes them immune from all sorts of possible prosecutions that can be brought against them.

Children are not “above the law” but they too are largely immune from all sorts of criminal prosecutions.

I have never seen a five year old convicted and executed for murder in my lifetime, but I’ve never considered five year olds to be “above the law” merely because they posses a certain type of immunity.

Immunity from prosecution is not an unusual thing. When the status to which the immunity does not apply, then the person can be prosecuted. In he case of the president, the process of removing that immunity is impeachment.

[guillaumeb]

22. The SCOTUS decision in Clinton v. Jones

If Clinton as President had no immunity from state level civil prosecution, that also seems to undercut the DOJ theory.

[unblock]

7. That suggests doj policy is broader than I think it is

I think the policy applies to potus only.

The doj could still indict a veep, even though the doj is unelected and the veep is (usually) elected

[jberryhill]

15. Indeed Agnew was indicted by a state

[unblock]

18. You might be just the person to ask this question:

The doj policy obviously isn't binding on the states, but is it based on arguments that would essentially apply to the states as well?

Never mind that I disagree with the conclusion in the first place.

I guess what I'm asking is, if you buy the logic that leads one to conclude that the doj can't indict a sitting president, would that same logic lead one to conclude that no state could indict a sitting president either?

[jberryhill]

19. Different set of considerations

It’s a different argument.

It may have the same answer, but for entirely different, and possibly better, reasons.

Imagine the mischief of assuming Joe Arpaio has the ability to arrest President Obama for having a fake birth certificate.

The Constitution places the federal government in a district not governed by a state for a variety of reasons, one of them being to keep the federal government outside of the jurisdiction of any state. Why do you suppose they did that?

[unblock]

25. Well that part makes sense.

At the end of he day, I guess it's true that the institutions are only as hood as the people in them.

I'm not sure there's an ideal structure where a president is properly held to account in terms of the law while at the same time keeping a reign on prosecutorial abuse.

That said, I'd like our constitution to try.

For example, the vp could serve as acting president while the president stands trial. Yeah, I know, a prosecutor could just repeat the process endlessly.

Nothing's perfect. Really, we need the senate to be in the hands of people who aren't *so* partisan as to cover for such a blatant criminal....

[jberryhill]

27. That is why the independent counsel law should not have expired

Rather than to tinker with it some more, it was just let go.

[StarfishSaver]

17. Great analysis!

[elleng]

4. Here it is:

The indictm ent o r cnm inal prosecution of a sitting President would unconstitutionally undermine the
capacity o f the executive branch to perform its constitutionally assigned functions

October 16, 2000

https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf

https://www.democraticunderground.com/?com=view_post&forum=1002&pid=12141923

[guillaumeb]

8. And that makes no sense for the reason that I laid out.

It would effectively make any President above and outside of the law. But the Constitution clearly places legal limits on what any President can do.

My view is that this position was crafted, invented, to protect a GOP officeholder.

[live love laugh]

13. How can you undermine someone who is unfit for office?

The people deserve to be able to address their leadership through their elected government.

[guillaumeb]

24. And would not a civil matter also undermine the capacity?

I am referring to the SCOTUS decision in Clinton v Jones.

[Grasswire2]

26. it's only an opinion; not even a policy. nt

[lunatica]

5. I hope this is dealt with by Congress after the next election.

It should be added to the hundreds of things that in any way have enabled the existence of this type of illegitimate and criminal Presidency.

[guillaumeb]

9. The Constitution already sets legal limits on the power of a President.

And this self-imposed limit on the DOJ should be removed.

[lunatica]

20. Yes. I agree.

We have to make sure the likes of Trump never happen again.

I would like to see specific actions be considered as disqualifying too, so that means candidates being vetted too. Lying under oath, refusal to submit tax returns, certain crimes such as pedophilia, spousal and child battery, sexual assault or physical assault. Habitual lying should be an automatic disqualifyer.

Making money off any aspect of being President, even down to the secret Service being forced to spend money on frigging golf carts should stop.

Many more of course, but this is a start.

[happyaccident]

10. So all it takes to begin a dictatorship in our "democracy"

Is for a political party to choose personal power over public service and refuse to impeach a president they want? I fear that this is the endgame... the masters of the universe are tired of having to pretend democracy to placate the working class. There can be Labor without capitalism but capitalism cannot exist without Labor.

[guillaumeb]

11. Welcome to DU.

The GOP chose power over democracy long ago.

The Citizens United decision enables and supports this.

[happyaccident]

14. Thanx for the welcome, thinking bout my first discussion topic

I heard a phrase when I was young "If you want to get smart, be the dumbest person in the room" as in surround yourself with smart people and you'll hopefully get smarter. I've already learned alot on this site, here's to many more years. (33,000?Damn.)

[lunatica]

21. Welcome to DU.

I agree with you about not trying to compete with smart people when you know better!

[live love laugh]

12. Several thoughts ...

The very fact that this is being discussed and not rejected and protested attests to the fact that this mere theory is close to becoming law because no one is fighting it. It’s one more piece of shit that’s actually sticking to the wall.

Nobody was talking about this before 2000 and it’s the product of right wing think tanks. Just like nobody was wielding guns at every turn before then.

We should be in the streets protesting this. Nobody is above the law.

[guillaumeb]

23. Good thoughts.

And as the SCOTUS decision in Clinton v Jones held, a sitting President can be sued in a state level court.

So if this suit can be allowed to continue, the same DOJ logic that defending a suit would impair the President's ability to govern and fulfill the Presidential duties, why was Clinton v Jones allowed to similarly distract the then sitting President?