Just occured to me. If Fitzgerald had evidence that Bush was lying

[jobycom]

Could he indict Bush?

I remember the argument with Clinton, and I don't know the conclusion. As I recall, one argument was that the president can't be indicted while in office. He could only be impeached by the House. He can be impeached for anything, but the only punishment can be removal from office by the Senate, and only for treason, bribery and other high crimes and misdemeanors.

The Constitution explicitly says that after being impeached and removed from office, he can then be tried and punished in regular court. That sounds like it means he can't be indicted and tried while in office.

In other words, I'm wondering if Fitzgerald could have something on Bush, but can't seek an indictment, and, since he is a prosecutor and not an independent investigator under the old rules, he can't file a report stating what he knows unless there is an indictment, and then he can only talk about the charges of the indictments.

Is there any chance he knows Bush is guilty of something, but doesn't have the authority to reveal it? The story about Fitzgerald visiting Bush's personal attorney got me to thinking about that.

If this is all wrong, please explain it. I'm asking, I'm not an expert on any of this.

[DoYouEverWonder]

1. The freepers argued for 8 years that you could indict a sitting president

I don't see why we should try to change their minds?

[jobycom]

4. Freepers argue lots of stupid stuff, but there is law at stake here.

And in the end you notice they couldn't indict Clinton, and wound up impeaching him instead, so it's not clear they even believed their own stories.

[merwin]

5. They didn't indict him because they had nothing substantial to indict

him on.

[jobycom]

6. They had even less to impeach him on, yet they did. nt

[merwin]

7. An indictment requires a grand jury. An impeachment requires the approval

of congress... One is citizens, the other was a rabid congress.

Big difference there :-)

[catnhatnh]

2. Gee...I wonder what the statute of limitation is ....

...for going AWOL during time of war...(and going a AWOL for over 30 days is DESERTION by military standards)...and we are NOT talking any "misdemeanor" here...

[demgrrrll]

3. I do not have a link but I have been reading that Mr. Fitzgerald visited

with Bush's attorney yesterday. That is an interesting bit of information. I wish I knew more about that meeting.

[liberalla]

9. Yes! Fitz spotted at bush's personal atty office on Fri. morning!

Hmmm... Why?

Here's the link: http://www.nytimes.com/2005/10/29/politics/29leak.html?pagewanted=all

Mr. Fitzgerald was spotted Friday morning outside the office of James Sharp, Mr. Bush's personal lawyer. Mr. Bush was interviewed about the case by Mr. Fitzgerald last year. It is not known what discussions, if any, were taking place between the prosecutor and Mr. Sharp. Mr. Sharp did not return a phone call, and Mr. Fitzgerald's spokesman, Randall Samborn, declined to comment.

Would love to know what that was about.

Here's a thread on the subject: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x5218871

[autorank]

8. Article I, Section 3. United States Constitution - It is extremely clear.

The constitution should be mandatory reading for every American. There should be a test periodically to determine rights to fully participate in our political process (After all, we test people to drive). It is our great protector, if we only knew what it said.

Article I, Section 3. Clause 7:

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, Judgment and Punishment, according to Law.

There is NO DOUBT about it. After impeachment, which can't levy a penalty other than removal from office, "the party" impeached is subject to subsequent trial, etc. "according to law."

Well, there's no damn law that says the President can't be tried ("the party", in this case) so tell anyone who has any "constitutional" arguments to read the Constitution of the United States of America. It ain't that hard.

[jobycom]

10. That wasn't what I asked.

I said that in my OP, that I knew the president could be tried after being removed from office. What I don't know is whether he can be indicted while in office. That's what I was asking.

[autorank]

13. See my next post. Of course he can be indicted in office. n/t

[zanne]

29. But he can't serve time.

Do you remember how the Republicans wanted Clinton to do some jail time after his term was over?

[jobycom]

11. And by the way, you're wrong.

The Constitution says "the Party convicted shall nevertheless be liable and subject to Indictment..."

You then added: "After impeachment, which can't levy a penalty other than removal from office, "the party" impeached is subject to subsequent trial, etc."

Impeachment is not the same as conviction.

This is the part I'm not sure of. A president "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." (Article II, section 4). It does not literally say that a president can't be impeached for other crimes, only that he shall only be removed for those crimes. Add to that 1,3,7, and the Senate can only punish by removing from office, disqualification from any Office of honor, etc. What it doesn't say EXPLICITLY is whether the Senate can convict for lesser crimes, even if they can't punish for them. It is implied, but an argument could still be made.

So the crux is this: If the Senate can only convict for crimes for which an officeholder may be removed, then Clause 7 implies a president CANNOT be indicted, since conviction would mean removal. If the Senate CAN convict even on crimes they can't levy penalties on (And that's iffy), then a President COULD be indicted, but AFTER BEING IMPEACHED AND CONVICTED.

In other words, this implies, but does not state, that Fitzgerald could NOT indict Bush now, since he hasn't been impeached and convicted, which is basical;y my question from the beginning. Can the president by indicted without being removed, or at least convicted by the Senate. I still don't see an answer to that.

[autorank]

12. Bush shoots someone in cold blood. You say he can't be indicted.

:rofl:

"the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." This speaks to legal actions following an impeachment. It follows the statement that congress can only remove from office, not levy penalties. Imagine the penalties the President's, VP's etc. opponents could come up with...life in the electric chair on a low current.

I digress.

The Constitution fails to allow the criminal indictment of the President because it never occurred to the authors that a President or other Federal officer would be above the law! This clause merely makes the simple point that in the case of a Congressional 'indictment' and 'trial', subsequent action can follow.

It's easy, relax. Why on earth wouldn't the President be indictable.

An example: Bush takes a walk in Lafayette Park. He sees someone walking along who has a look he doesn't like. He hauls out a 38 and shoots him dead. Now are you trying to tell me that he can't be indicted. Please, very simple. He's charged and tried. If you agree with that, he can be indicted for anything. It's already established that Presidents are subject to civil actions. Criminal actions are even more obvious. Here's a better example: Bush gets behind the wheel of one of those SUV's, drives around the city at 100mph running over people. Oh, sorry, we can't indict him because he's the President.

The bull shit about indicting a President was never a real argument. It's right wing glue sniffing constitutional interpretation.

On edit: Here is some true "glue sniffing" legal analysis. Memorandum in 2000 about indicting the president. It argues that all Federal officials can face criminal indictment except the president because doing that would interfere with his conduct of the offices duties. How stupid is that? The founders would never have tolerated such stupidity. Let's see, on the first day of his term, the President shoots someone in cold blood, a citizen whom he is supposed to serve. His party controls the House by a huge majority. The President, according to glue sniffer's like Bork and Moss (author of the DOJ brief) say he can't be indicted for this crime. The House, controlled by his party refuses to impeach and remove him from office. Therefore, we've got a president for four years who is an accused murderer. Wouldn't that interfere with his ability to perform his duties?

The "above the law" status of the President is a convenient fabrication by authoritarians and proponents of the barbarity of royals who assumed the right to rape and pillage. No one is above the law in this country.

[onenote]

15. Nice rant

But it would be more convincing if you offered a point by point rebuttal of the Office of Legal Counsel's analysis (written by those "glue sniffing right wingers" in the Clinton White House and base, in part, on the writings of another notable glue sniffer, Justice Joseph Story) rather than simply offering your mind reading of the founding fathers. The OLC analysis is well reasoned and I'd be willing to take it to the bank that in any scenario you want to imagine, there would be no indictment of the president until after he was impeached, convicted and removed from office.

onenote

[autorank]

14. No one in this country is above the law. To say otherwise is to invoke

royal privilege. That's why I went on a 'onenote' ;) rant.

The guy can't go out and shoot someone and avoid criminal action. If he is able to do that, he's a monarch.

Imagine all the vile crimes out there: rape, child sexual abuse, larceny, spousal abuse...the president can do them all, no problem, because he's "above the law." No way.

If the framers intended for the president to have a legal exemption, they would have listed it specifically. They didn't. My mind reading is based on my Constitution reading.

How about this headline:

PRESIDENT COMMITS DRIVE BY SHOOTING.

Congress in Recess

DC Police Say Hands Tied

Segal Offers Services, Gratis

[jobycom]

19. No one is talking about a "legal exemption."

Once a president is out of office--four years max in your scenario--he can obviously be indicted and convicted. The issue is whether he can be arrested or indicted as a sitting president. The answer seems to be no, based on other posters, and on my own further research.

A president whose guilt in a murder was undisputed would be removed from power in other ways. If nothing else, he would be declared mentally unfit for office, per the Constitution, and relieved of his duties, if he was bold enough to not resign.

[autorank]

20. Wrong, no evidence from the Constitution. Some text please...

"A president whose guilt in a murder was undisputed would be removed from power in other ways."

The fact that there are other ways in no way demonstrates that the Constitution exempts the sitting president from criminal action by local, state or Federal police.

"If nothing else, he would be declared mentally unfit for office, per the Constitution, and relieved of his duties, if he was bold enough to not resign."

Again, the notion of removing a :sarcasm:"mentally unfit" president is comforting (but not in recent application, obviously). However, this also fails to deal with the central question:

Does the Constitution specifically exempt the President of the United States from arrest and prosecution for criminal activity while he/she is in office?"

The answer is NO. And it shouldn't. No amount of DOJ political appointee spinning can convince anyone who has read the Constitution that their patron can avoid what none of us can avoid: adherence to the law.

Find me a section where it says the President is above the rest of us.

[onenote]

25. I didn't realize we had original textualists here on DU

Your argument has a basis if you limit yourself to the plain text. Byt that sort of reasoning is no different than the reasoning that Scalia and other "originalists" use when interpreting the Constitution. Are you willing to employ that same approach to every constitutional question?

The better view, imho, is to look at the entire document and the structure of the separation of powers incorporated therein.



onenote

[autorank]

27. To interpret, you need text to interpret. Political slander noted.

Well, golly gee, that's like calling me a freeper since that's the way they do it.

I take the resort to political slander as a sign that your argument and that of others here is entirely without merit.

You need something to interpret, i.e., a reference to an exemption from the law. There is no such exemption mentioned. You can read the Constitution to allow regulatory functions not yet imagined or a right to privacy or the civil rights/voting rights acts (although you need the Amendments for that). But you can't interpret, better interpolate, a right for Presidents' that would have been known at that time. The colonists were acutely aware of crimes by high officials. In fact, William Pitt the Elder excoriated King George repeatedly from the floor of Parliament for his crimes and errors.

You can't find an exemption for Presidential prosecution because there isn't one.

Sorry, slander won't do it. Arguments will...and you have nothing.

[onenote]

32. not intended to be slander

Anyway, truth is a defense. You were the one who argued based on the literal text of the constitution.

You are right. There is no exexmption mentioned. There also isn't a provision that says a sitting President may be indicted prior to impeachment and conviction. However,the Constitution is not silent about Presidents and indictments. There is a provision (Article I, Section 3) that affirmatively says that an official who is impeached and convicted "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to law." Why bother to say that if it was obvious that all officials commiting crimes were subject to indictment?

That provision creates ambiguity. Ambiguity requires interpretation.

onenote

[jobycom]

26. You're willfully ignoring the facts, so I'm just going to bail out

You keep ranting, and I was asking for facts. I've explained how the Constitution is interpreted to say that a sitting president can't be indicted, especially for crimes involving his job. It's the opinion of over a century of legal scholars. If you are smarter than all of them, I apologize, but you still are not presenting facts, just your rant.

There is nothing in the Constitution which specifically authorizes the right to abortion, equal rights between men and women, or the right to privacy. These are all logical interpretations based on other clauses and amendments of the Constitution. As is the idea that a sitting president can't be indicted. The legal conclusion has been that indicting a sitting president would prevent him from carrying out the duties assigned to him by the Constitution, and therefore it would be unconstitutional.

As I said, the best argument against that is that the VP can take over if the president is incapacitated, but no court is going to claim that a perjury charge or an obstruction charge is strong enough to remove the president from power. Treason or leaking classified information obviously would, but that wasn't my original point.

Anyway, nice discussion, but we're going in circles now.

[autorank]

30. Another slander meister..."you keep ranting." You didn't bail at all.

If you're going to bail, :hi: But you took your cheap shot on the way out. Not nice.

Why is is so important to you to have the President above the law?

The Constitution can be interpreted based on original context and events over time. To extrapolate a right, like privacy, you need something to go on. Abortion, Federal regulatory agencies, the income tax are all tied to various sections of the Constitution that can be extrapolated. They are also of interest since they were not specifically anticipated, in many cases, at the time the Constitution was implemented.

Crimes by the President were known. Crimes by the King were knowns.

You can't extrapolate from no text, no clear intent...only your inferences.

You and 'onenote' are a nice team:hug:. You work well together.

[jobycom]

17. Some actual facts or arguments would be more convincing.

You're saying what you think should be the case. I was trying to find out what actually is the case.

I suspect that if a DC cop tried to arrest the President, he would be shot by the Secret Service, so the president is obviously above the law at least to that degree. So where is the limit?

Robert Ray and Ken Starr refused to seek an indictment of Clinton because they doubted a sitting president could be indicted. Many others have agreed with this. As you say, the argument is that the Constitution requires certain duties of the president, and an indictment would interfere with those duties--thus indicting him would be unconstitutional. When the court decided to allow the civil case to proceed against Clinton, that same argument was raised. The court did not reject the argument that the president's duties could not be interfered with, only that the civil case would take up enough of his time to interfere with those duties. So unlike you, I'm not sure the president could be indicted for murder even if he did it on television.

Now, to counter that argument, you could have pointed out that the Constitution provides for the VP to take over the duties of the president of the president is unable to carry out his duties. Thus, if a president is indicted for murder, the VP would take over, and there would be no crisis. But since Ray and Starr did not try this with Clinton, I suspect the argument is more complex than this.

For the record, the VP can be indicted, and has been. Aaron Burr was. But since the VP's only duties are to preside over the Senate and to take over if the president is incapacitated, indicting him does not interfere with much.

There is also the case of private versus public crimes. If the president shot someone, that would be a personal crime, and maybe (though you present no evidence, you just make an assumption) he could be arrested and/or indicted for that. Impeachment is "the trying of a public official for charges of illegal acts committed in the performance of public duty." The Plame leak would fall under that category, and therefore any perjury or obstruction charges could be construed as impeachable, not indictable, for elected or appointed public officials.

So I'm back to my original question, even if a president can be indicted for murder: Can he be indicted for perjury or obstruction in this case, or would he have to be impeached?

I don't know. Your post doesn't really make a factual argument one way or the other.

[autorank]

21. My argument is purely factual. Show me where the Constitution

says the President is exempt from criminal action?

That's my argument. If it's not allowed, criminal behavior by the President, than Presidents are like the rest of us.

Can't you just see Jefferson sitting there thinking, wow, must make sure that the President is above the law, imune to the same laws as the people. These were revolutionaries, many of them, who wrote the Constitution. They were revolted by royal privilege. Jefferson and George Mason for that matter would have hardlyi enshrined the President with this royal right.

[jobycom]

28. Show me where it gaurantees a woman's right to an abortion.

For the record, Jefferson didn't write the Constitution.

And no one is claiming the person who holds the presidency is above the law. They are claiming he has to be removed from office before he can be prosecuted.

[flyarm]

22. i may be wrong ..but didn't the congress have an indictment

on nixon but he was never served it..they held it and told him get out of dodge before it was served him??

for some reason i remember that..but i could be very wrong as well..but that sticks in my mind for some reason...

fly

[onenote]

16. No indictment, but nothing prevents him from "revealing" misconduc

The weight of history and authority (going back over 170 years) is that a sitting president cannot be indicted. He would have to be impeached, convicted, and removed from office first. And there is no way in a million years that Fitz is going to try and go against that history and authority. However,as was the case with Watergate, a prosecutor can reveal what he/she knows about presidential misconduct and can even name a sitting president as an "undicted" co-conspirator. And after Nixon resigned, he was no longer immune from indictment, which is why Ford pardoned him.

onenote

[jobycom]

18. Thanks. That's what I was looking for.

So it means my suggestion that he knows something about Bush but can't reveal it because he can't indict Bush is wrong. He could still reveal it if he had evidence that laws were broken.

[grasswire]

23. but remember what Fitzgerald said

He said that if they don't indict someone, they won't talk about him/her. He said that's unethical, and the reason he's not given permission to write a report. If they can't prove the case, they don't release the information.

[jobycom]

31. yes, I thought of that, too, but I think

The other poster was only saying that if they had evidence that the president had committed a crime, the prosecutor could reveal that, especially if that information was important in another indictment. I think that Fitzgerald was trying to say that if there were no indictment, that meant that the grand jury had not seen enough evidence to indict, so he wouldn't talk about it.

The way I interpret it, based on the post above these, is that Fitzgerald could give a report on the president's crimes if he had enough evidence to indict, even if he couldn't indict him as the sitting president.

If the other poster is right, anyway. It could be that the prosecutor for Watergate was given the right to investigate and issue a report, whereas Fitzgerald is simply a prosecutor with no special rights, therefore he can only reveal indictments, and not issue a report. I was assuming the other poster was right and that they were the same type of prosecutor.

[Mass]

24. I dont think he could for an offense committed as president

which is why they impeached Clinton for the perjury offense (if I remember correctly, the first trial was a civil one and was concerning something that happened why he was not in office).

[jobycom]

33. In the civil trial

Clinton's attorneys argued that the trial would interfere with his duties as president. The court concluded that a civil trial would not take up too much of his time. They left intact the idea that something which would take up too much of his time would be forbidden. It wasn't about when the offense was commited it was about when the charges were brought. Clinton's lawyers claimed she would have to wait until he left office, not that he was exempt from the trial. IIRC.