Wednesday, June 6, 2018

Can a Sitting President be Charged with a Crime?

  It is said by some, a sitting president cannot be convicted of a crime. I would suggest, the writers of the Constitution were trying to go the opposite direction, trying to ensure that presidents were not immune.
   Read Article I, Section 3, Clause 7:
   "Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial and Punishment, according to Law."
   The writers said that in impeaching the president, the Senate cannot go beyond removing him or her from office, and from barring him or her from any office, trust or profit. That's all the Senate can do. But, the writers wanted to make it clear that that does not mean the president cannot be convicted of a crime, so they added language saying he or she is "liable and subject to Indictment, Trial and Punishment according to Law."
   Those last three words, "according to Law," suggest that whatever the law says for anyone else, the same applies to the president.
   So, where do we get the idea a sitting president cannot be charged with a crime? I would imagine it comes from the three words, "the Party convicted." Convicted is past tense. In this case, it appears to be referring to the president being convicted of impeachment. So, it is saying that the person impeached can be indicted, tried and punished. The pundits suggest that, therefore, until the president is removed from office, he or she cannot be charged, tried or convicted.
   I would argue that:
   (1) As I said, it seems the founding fathers were attempting to ensure just the opposite. If we are to go by the intent of the framers of the Constitution, we do not let the president off the hook.
   (2) While, yes, the wording says he can be indicted, tried and punished after being removed from office, it does not specifically say he cannot be indicted, tried and punished before that removal. So, if we are just going by the words -- not the intent -- we still do not let the president off the hook.
   (3) As I said, the last three words -- the three words following the explanation that the person convicted of impeachment can be held liable for crimes, are "according to Law," which suggests whatever the law is for anyone else, so it is for the president. Nothing changes; The law is still the law.
   Impeachment is simply a separate process from the trial. Perhaps, the founding fathers were wanting to make sure they were not giving Congress judicial power to convict of crimes. They wanted that matter to be handled by the appropriate branch of government -- the judicial -- just the same as it always is, with the normal processes in place.
   It would seem to me that with this in mind, when Mueller concludes his investigation, he should turn his findings over to two separate entities. First, he should give Congress all the finding pertinent to impeachment. Second, he hould give all the findings back to whatever agency or court that you and I would face were we to be charged with the crimes.
  It might be that rather than the impeachment coming first, conviction of crimes will need to come first.  I say this because the Constitution says, " The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
   It says there must be a, "Conviction of." Does that mean the president must first be convicted of treason, bribery or another high crime or misdemeanor before he can be impeached? It would seem that is one possibility of what the writers of the Constitution were trying to say.
   But, the verbiage also refers to removal of office also being for impeachment. It says, "shall be removed from Office on Impeachment for, and Conviction of." Does this mean either or? -- Either "Impeachment for" or "Conviction of"? Does it mean the president can be removed from office not only upon being convicted of high crimes and misdemeanors, but also after being impeached for high crimes and misdemeanors?
   I'm believing this second process is the one we practice. Bill Clinton was impeached by the House of Representatives, but when the Senate voted, there were not enough votes to remove him from office.

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