Thursday, October 20, 2005

TREASONGATE: A Sitting President Can Be Indicted

And so can a sitting Vice President.

For a change, I'm not going to give you my own analysis. Instead, I'm going to quote arch conservative lawyer, the legal sidekick of Rush Limbaugh, the infamous Mark Levin of the Landmark Legal Foundation, aka "The Great One". Let's have a look at what he has to say, and what Rush totally agreed with, regarding the indictment of a sitting President. This comes from an an official Landmark Legal brief:

Can A President Be Indicted While in Office, Or Must He First Be Impeached?

January 23, 1998

Can a president be indicted while in office, or must he first be impeached? Recent events in Washington have renewed this once obscure debate.

Article I, Section 3 of the United States Constitution states, in part: "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 are two different concepts expressed in this part of the Constitution. First, impeachment is a political response, and the violations do not have to be specifically enumerated in a criminal code. It allows the public, through its representatives in Congress, to act on its revulsion with a president.

Some point to Article II, Section 4 of the Constitution and claim it requires criminal wrongdoing as a condition of impeachment. That section states, "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."

No less than the late constitutional expert Raoul Berger, who was one of the nation's leading scholars on the subject of impeachment, among others, wrote that treason, bribery, "'high crimes and misdemeanors' appear to be words of art confined to impeachments, without roots in the ordinary criminal law and which had no relation to whether an indictment would lie in the particular circumstances."

Second, the language in Article I, Section 3 makes clear that impeachment is not an exclusive remedy. A president is still subject to criminal prosecution, if warranted. He can be impeached and removed from office, but this is a limited remedy. Given this limitation, the Founding Fathers wanted to make clear that impeachment would not immunize a president and bar subsequent criminal prosecution. Obviously, this concern only arises in cases where impeachment precedes criminal prosecution. Therefore, if criminal prosecution precedes impeachment, it is not an issue.

Criminal prosecution and conviction does not remove a president from office. Impeachment is the only mechanism for his removal, absent issues of disability. Therefore, there was no question when the Constitution was written that impeachment would be available after a criminal prosecution. Consequently, there was no need for the Founding Fathers to provide language that preserves the impeachment power after a criminal prosecution.

Moreover, if a president truly believes that it is unconstitutional to indict a sitting president, the president has the power to stop the indictment against himself, or direct its withdrawal. He also has the power to grant himself an unconditional and complete pardon and thereby bar the prosecution. Since he has these powers, if an indictment is brought against him by the United States - meaning, by the Executive Branch that he heads - and he asks a court to dismiss it, he is asking for an advisory opinion. Under the Constitution, federal courts are forbidden from issuing advisory opinions.

They do not exist to relieve the president from difficult political decisions. This is so even if the decision could lead to his impeachment and removal from office.

The possibility of impeachment does not immunize the president from criminal prosecution. He remains, at all times, a citizen of the United States who is answerable to the law.
Mark R. Levin is president of Landmark Legal Foundation and Arthur F. Fergenson was a law clerk to Chief Justice Warren Burger.
Landmark Legal Foundation

Argue with Mark. This isn't my analysis. It will be interesting to see what Rush has to say about this.

by Citizen Spook