I don’t think that is right. From a Constitutional perspective, the executive branch is charged with enforcement of the laws, including enforcement of criminal law. Congress cannot directly compel the DOJ or any other part of the executive branch to exercise its discretion in that way. Congress’s authority in this area is impeachment.
No, not really. I think there is a difference, perhaps subtle, between the DOJ saying:
the President cannot be indicted no matter what he/she does
and
the President could be indicted but we choose not to do it in this particular case.
The latter could be treated as an impeachable offense more readily than the former, because the former is a wrong without a wrongdoer; the DOJ can shrug and say whaddayagonnado?
Yes, that makes sense, but it would take a veto-proof majority.
I disagree, I don’t think the Constitution renders the President immune from prosecution. The proper remedy for a criminal President is prosecution by the DOJ. Impeachment is another way, but it isn’t the only way.
I’m not sure what you’re disagreeing with, so perhaps we’re not understanding each other.
edit - to clarify, I was saying there’s nobody to challenge DOJ policy except the DOJ themselves.
I don’t think that can be right. If Trump e.g. shot my brother dead in broad daylight in the middle of 5th Avenue, and the DOJ acknowledged that he did it while shrugging because of their policy, it’s hard to believe I don’t have some kind of standing to challenge the policy.
I get the feeling of outrage, but I sadly don’t get what the legal opinion is based on. As I understand it, he would need to be booted from office first, and then he’d be charged right away. IANAConstitutionalscholar, either, however, so I totally accept the notion I could be completely wrong and would frankly be relieved if so.
Sharpe
4573
Legally I believe a non federal jurisdiction could still indict a President - in Scott’s example, the State of NY could indict for murder.
But as to the DOJ policy itself, I don’t see a court based way to challenge that directly.
I think it could be solved by an act of Congress. The court would probably rule fairly on it since it’s more likely to apply to Dems than Republicans.
I do expect the state of NY to charge Trump once he’s out of office. How that is handled would be up to the next President. A Dem president would get massive blowback if he gave Trump golden treatment.
Sure, but that’s the DOJ opinion. The Constitution doesn’t say that. If it’s wrong, it’s wrong, and you can’t point to it to prove it is right.
That’s bizarre, isn’t it? What keeps the DOJ from declaring themselves immune to prosecution?
Sharpe
4576
Oh yeah, it’s a flaw in the system alright. I do think there is a Congressional solution though in that I believe Congress can pass a law saying the DOJ can’t treat the President (or any other individual) differently than the common standard. I don’t believe the “prosecutorial discretion” argument will stop this as Congress does pass the laws under the DOJ operates.
The Constitution says precious little about prosecution. edit - just to extra clarify, this isn’t me saying this is how things should be, just saying that’s the way things are.
Sharpe
4578
Or alternatively, Congress could probably pass an “Independent Counsel” law allowing for the appointment of counsel outside the DOJ to prosecute a President which would not be subject to the DOJ policy.
Indeed, but that’s an amazing basis from which to conclude prosecution of the President is impermissible.
Edit: I really can’t grasp your argument. It reads to me like a Catch-22.
It’s not an argument. I agree it’s a bad system. But it’s the system we’re currently stuck with.
DOJ policies are expressions of the DOJs discretion, and can be changed at any time, so I don’t think there is as much of a distinction here.
Obama used the DOJs discretion to not prosecute certain classes of immigration offenses. DACA, for example, was a result of the DOJ policy to exercise the discretion not to prosecute.
I agree with you that the Constitution does not render the President immune from prosecution, but since the Attorney General and United States Attorneys serve at the pleasure of the President, it seems extremely unlikely that they would prosecute their boss, and if they acted to do so they would almost certainly be fired. Similar scenario to the Saturday Night Massacre under Nixon.
This would, of course, trigger a constitutional crisis, the remedy for which is impeachment.
Long story short, removing the DOJs opinion that the President can’t be indicted isn’t going to change the reality that the DOJ is part of the executive branch and ultimately answerable to the President, and is not likely to indict their boss.
That is also the reason why Congress passing a law that says you need to treat the President like anyone else doesn’t solve the problem. The DOJ can use its discretion over who to prosecute. If it disobeyed Congress’s law, Congress could sue, but there are really only two outcomes under any normal understanding of American law: (1) The court declines to decide the issue under the Political Question Doctrine, which is generally that the court does not weigh in on disputes between the other branches over areas in which the Constitution gives those branches authority, or (2) a holding that the DOJ has discretion over who they prosecute, which would be rooted in centuries of Anglo-American jurisprudence.
I’m not saying that I like it, or that you should, but the Constitutional remedy is impeachment. Also, you can prosecute a former President, although there may be prudential reasons not to do so.
No, I don’t think this is right. The DOJ doesn’t offer this policy as a matter of discretion. Instead, they say:
The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.
They’re saying they have no discretion in the matter at all, that it cannot be done.
Edit: It is a simply a mechanism for relieving themselves of the burden, and of the consequences for looking the other way while a President breaks the law. We should not permit that.
Thanks, I think I understand your point better now.
I was just trying to make clear that a DOJ policy does not have the same legal force as a law passed by Congress or agency regulation—there isn’t the same level of process behind it (e.g. doesn’t need to pass Congress or go through a notice-and-comment rulemaking process) and it can be changed if the DOJ changes its mind about prosecution of the President.
Congress could try again at a special prosecutor law that would create a mechanism to name a prosecutor independent of interference from the President. There would be a separation of powers challenge, but I’m wondering if an appropriate balance between the old special prosecutor (too powerful) and the current one (too weak) could be found.
Maybe the prosecutor would have the power to issue an indictment that would automatically be deferred for the President’s term of office unless Congress took further action.
Fair enough, but in practice you’re saying it is unassailable; which to me means that it has much greater force in law than those other examples. If there is no mechanism to get the question before a court, it is in fact the hardest law of the land. And there’s basically zero chance a future administration will voluntarily reverse the policy. And, as I said, if one did, the next would reverse it right back.
magnet
4586
If a prosecutor decided to exercise discretion by explicitly prosecuting only black people, surely he would be breaking the law? He can’t explicitly base his judgment on something like that, nor could the AG order him to stop prosecuting white people.
It’s one thing if the special prosecutor decides not to prosecute someone, it’s another if they cite a policy never to prosecute someone in a class that by an act of Congress must be treated like everyone else.
Sharpe
4587
In the big picture, this is exactly why Impeachment is a Congressional power in the Constitution, b/c a truly unscrupulous executive can use its discretionary enforcement powers to place itself above the law. For centuries, this has been checked by the “soft” power of norms, but the “hard” check is Impeachment.
I agree with you 100% that the DOJ non-prosecution policy is utter BS, but the real solution is clear: impeachment. The fact that the House is too cowardly to start the process and the fact that the Senate is too partisan and complicit to convict, are just parts of the overall problem: which is the reality that our democratic form of government by law, under law, is on the verge of collapse due to GOP abuse, exploitation, venality and criminality.
