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Wed Jul 24, 2019, 12:38 PM

The "sitting president" indictment issue is flawed

So an obviously criminal president is the subject of an ethical investigation.

The criminal president has the advantage of learning of all charges and evidence against him and has the advantage of the passage of time so that the issue and even investigators may die—literally or figuratively.

The criminal then has the option to (a) get re-elected to delay or avoid prosecution and (b) completely obstruct future justice and change the investigatory process—including laws so they are in his favor—and to screen out unfavorable prosecutors as well as to funnel money to the election of more favorable political allies.

This notion must be challenged. It tips the scales of justice.

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Response to live love laugh (Original post)

Wed Jul 24, 2019, 12:40 PM

1. AND it isn't in the Constitution

Or even a law passed by Congress.

It's a DOJ Policy Memo. F a DOJ Policy Memo.

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Response to maxsolomon (Reply #1)

Wed Jul 24, 2019, 12:41 PM

2. Yep. And it's almost like the hearing gives credence to it. nt

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Response to live love laugh (Original post)

Wed Jul 24, 2019, 12:45 PM

3. That is how an authoritarian dictatorship works...

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Response to live love laugh (Original post)

Wed Jul 24, 2019, 12:48 PM

4. The OLC memos interpreted the Constitution as prohibiting the indictment

of a sitting president on the ground that it would violate the separation of powers doctrine. Whether or not that interpretation is correct would have to be decided by the Supreme Court - and I'm not sure we want this Supreme Court deciding the issue.

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Response to live love laugh (Original post)

Wed Jul 24, 2019, 12:55 PM

5. It's a check on public control of government.

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Response to jalan48 (Reply #5)

Wed Jul 24, 2019, 03:08 PM

9. Yes which is a violation of Article 2 to uphold the Comstitution. nt

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Response to live love laugh (Original post)

Wed Jul 24, 2019, 01:13 PM

6. The flaw was assuming any President would be a man of Honor.

I suspect this decision will be revised.

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Response to live love laugh (Original post)

Wed Jul 24, 2019, 01:24 PM

7. That is at the heart of the whole Mueller thing and the Repube response.

Their argument is that if he wasn't indicted then he did nothing illegal.

They need to begin hearings on whether or not that is true and define this as an amendment.

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Response to cbdo2007 (Reply #7)

Wed Jul 24, 2019, 04:24 PM

14. Whether they impeach or not this question must be resolved. nt

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Response to live love laugh (Original post)

Wed Jul 24, 2019, 02:16 PM

8. It also allows a president to commit crimes

Any crimes as long as he has someone to stop any proceedings regarding impeachment. That's wrong, That finding he could not be indicted was an opinion, not a law, and should be challenged, and he is indicted, or the crimes will only escalate.

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Response to duforsure (Reply #8)

Wed Jul 24, 2019, 03:23 PM

10. Yes it should be challenged. There's nothing to lose since they're already acting as if it's true.

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Response to live love laugh (Original post)

Wed Jul 24, 2019, 03:38 PM

11. Seth Abramson has a good analysis of the issue.

1/ The now-infamous Watergate-era OLC (DOJ) memo was bolstered in 2000 when it was repeated, cited and effectively adopted by another OLC memo in that year. The upshot: it says you can't indict a sitting president because doing so might distract him/her from a president's duties.

2/ The problem is that SCOTUS has ruled you *can* distract (as it were) a president for many types of legal proceedings. Nixon was ordered to produce physical evidence; Clinton lost unanimously when he tried to avoid having to give testimonial evidence himself. But there's more.

3/ Trump's handpicked Attorney General, Bill Barr, recently said in a TV interview that—physical/testimonial evidence aside—the DOJ can *and should* issue *public charging decisions* when they believe a president may have committed a crime. He chastised Mueller for not doing so.

4/ So the "don't distract the POTUS" narrative seems faded: you can make a POTUS produce physical evidence, make a POTUS testify, publicly state an intent to charge... the only question is if you can *try* him/her. So why Mueller didn't even subpoena him for testimony is unclear.

More: https://threader.app/thread/1153354684293406721

Laurence Tribe has also weighed in on this issue

https://www.lawfareblog.com/yes-constitution-allows-indictment-president


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Response to Danascot (Reply #11)

Wed Jul 24, 2019, 04:22 PM

13. Good info 👍🏾.

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Response to live love laugh (Original post)

Wed Jul 24, 2019, 03:50 PM

12. Can a sitting president even be ARRESTED?

Suppose trump went all Amon Goeth and started shooting people from a White House balcony.... under this OPC opinion can he even be arrested?

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Response to Goodheart (Reply #12)

Wed Jul 24, 2019, 04:32 PM

15. According to "the memo" no. 🙄 Scenarios like yours are what's missing from the premise. This has

to go before the Court. I don’t see how the Supreme Court can uphold it based on past precedent but doing nothing sets precedent for sustainment.

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