Why We Can't Prosecute a Sitting President

Harvard law professor emeritus Alan Dershowitz has told Fox News that Justice Department memos state that a sitting president cannot be indicted, prosecuted or tried, without first having been impeached and removed from office. I agree.

The president of the United States is elected by the people (their "electors") in all 50 states.

Three articles of the U.S. Constitution deal with removal from office or impeachment:

Article 1 provides:

-- "The House of Representatives ... shall have the sole power of impeachment."

-- "The Senate shall have the sole power to try all impeachments.."

-- "Judgement 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, judgement and punishment, according to law."

Professor Dershowitz would read that as saying "but the party once convicted by the Senate shall nevertheless be liable and subject to indictment, trial, judgement and punishment." For the professor, there can be no prosecution, or punishment of a sitting president until after his removal from office pursuant to the Senate's impeachment conviction.

The reason for this is patently obvious.

If a sitting president can be indicted and tried by a special prosecutor, he could just as easily be indicted, and tried by any or all of the 93 U.S. Attorneys. Worse, he could be indicted, and tried by the hundreds of county prosecutors of every state in the union.

The danger is obvious. Chaos. If the president can be tried, convicted and imprisoned while in office, is he going to serve the remainder of his term while confined in a penitentiary? Is Joliet State Prison going to be the Midwestern White House? What if he appeals and wins?

If the president can be prosecuted while in office, any one prosecutor -- federal or state -- could nullify or attempt to nullify the will of the voters (and their electors) in the 50 states. What if the Cook County state's attorney charged the president with "official misconduct" for usurping Congressional power to declare war by taking out an Islamic State terrorist training camp in Libya without specific prior Congressional approval?


Would the president have to put all other issues on his desk on the back burner to defend himself in Cook County criminal court? Can 12 jurors nullify the results of a presidential election?

It is not difficult to imagine a concerted effort by 10 opposition prosecutors, acting as Lilliputians to tie down President Gulliver -- to divert his attention from the great matters of state and duties of his office, to the tawdry matter of defending himself against sundry official misconduct charges. If you think the efforts of the opposition party in Congress -- Republican or Democrat -- to obstruct the sitting president's agenda are hurting the country, imagine the chaos that opposition prosecutors could do if they had power to indict, try and imprison a sitting president.

The argument has been made that during the trial of a sitting president, the vice president and a majority of the principal officers of the executive departments could make a written declaration that the president is "unable to discharge the powers and duties of his office," and that the vice president could then immediately assume the powers and duties of the presidency pursuant to the 25th Amendment.

The president could, however, make his counter-declaration that no inability exists. If he did, he would resume office unless two-thirds of the members of both Houses of Congress found that he was unable to discharge his duties.

The 25th Amendment was added to the Constitution (1967), not to allow members of the president's cabinet to suspend a physically and mentally competent president from office during a criminal trial, but rather to do so if the president should become physically or mentally disabled. It was passed in the wake of the 1963 assassination of President Kennedy. What if the bullet, rather than killing the president, had left him alive but unable to "discharge the powers and duties of his office?"

The sole remedy for high crimes and misdemeanors is impeachment -- by the elected representatives of the people from all 50 states.

Posted: QCOline.com August 22, 2017
Copyright 2017, John Donald O'Shea

Ever Hear of Tenure of Office Act of 1867?

What if President Trump should decide special prosecutor Robert Mueller is abusing his authority? That Mueller’s Russian meddling investigation is hindering the president’s duty to faithfully execute all the other laws? Can President Trump “fire” or remove him?

The simple answer is, “Yes.”

Article II of the U.S. Constitution gives the president power to appoint the “principal officers” of the U.S., subject to the advice and consent of the Senate. It is silent, however, as to the president’s power to remove those principal officers.


What if Congress were to pass a law providing that Mueller cannot be removed without the advice and consent of the Senate? Or without the approval of the courts?

If the president has the power of appointment, the president has the absolute constitutional power to remove that executive branch officer without the consent of the Senate, even though the officer’s appointment was subject to Senate approval.

In 1926, in the case of Myers v. U.S., the U.S. Supreme Court decided that issue.

Frank S. Myers was a first-class postmaster, appointed under an act of Congress which provided “postmasters of the first, second and third classes shall be appointed and may be removed by the president by and with the advice and consent of the Senate ...”

President Wilson dismissed Myers from his post. The Senate did not consent to the president’s removal. Myers sued.

The court framed the issue as follows:

“This case presents the question whether, under the Constitution, the president has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.”

The court engaged in an exhaustive historical examination of the issue that included analysis of legislation, beginning with the 1789 Bill to Establish a Department of Foreign Affairs, considered by the First Congress, which would have allowed the president unfettered discretion to remove any officer conducting the foreign affairs of the nation.

It concluded with examination of the 1867 Tenure of Office Act which barred President Andrew Johnson from removing Secretary of War Edward Stanton without Senate consent. (Stanton refused to support President Andrew Johnson’s lenient plan to reconstruct the South, and instead supported the rigorous congressional Reconstruction of the radical Republicans).

The court concluded:

“When, on the merits, we find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct, and it therefore follows that the Tenure of Office Act of 1867, insofar as it attempted to prevent the president from removing an executive officer who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so.


“For the reasons given, we must therefore hold that the provision of the law of 1867, by which the unrestricted power of removal of first-class postmasters is denied to the president, is in violation of the Constitution, and invalid.”

The court’s holding was based squarely on the 1789 remarks of James Madison and his supporters during the debate on the Bill to Establish a Department of Foreign Affairs.

Mr. Madison, in the House discussion, dwelt at length upon the necessity for construing Article II to give the president the sole power of removal in his responsibility for the conduct of the executive branch, and re-enforced this by emphasizing his duty expressly declared in the third section of the article to “take care that the laws be faithfully executed.”

According to Madison, “The vesting of the executive power in the president was essentially a grant of the power to execute the laws. But the president, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates.

“As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws.

“The further implication must be, in the absence of any express limitation respecting removals, that, as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible.”

Posted: QCOline.com August 10, 2017
Copyright 2017, John Donald O'Shea

Must Guards Turn Other Cheek to Spitting Inmates?

In Harper Lee’s novel, “To Kill a Mockingbird,” Bob Ewell spits in Atticus Finch’s face.





Finch had acted as court appointed defense counsel for Tom Robinson, and had defended him against a perjured rape charge leveled by Ewell and his daughter.

Finch replied, “I’m too old to fight.”


But what are real-life prison guards at Harrisburg Juvenile Detention facility supposed to do when incarcerated delinquents who have turned 18 (adult) spit in their faces?

There was a time when if a convicted juvenile delinquent spat in a guard’s face, the spitter found himself in solitary confinement for a period deemed sufficient by the prison authorities to deter such misconduct. Then the American Civil Liberties Union and the federal court got involved, and the use of solitary was severely curtailed by the federal judge’s “Remedial Plan.”

As summarized in the ACLU’s most recent pleading, the plan “specified limited purposes for which [solitary] confinement may be used behavior management [not to exceed 24 hours] ... and specifically provides that ‘All other forms of confinement shall be prohibited, including, but not limited to for purposes of disciplining or punishing a youth.”

The ACLU now alleges that those delinquents who have turned 18 (become “adults”), are now being prosecuted for aggravated battery, and upon conviction sentenced to adult prison or probation -- spitting on someone is a battery, and when that someone is a correctional officer, it becomes aggravated battery. The ACLU argues “this kind of excessive punishment is ruinous for young lives.”

But if you are 18, and on the street, and you spit in a cop’s face, you’ll certainly be charged with battery. And if you have a prior significant record, either as a juvenile or an adult, you may be charged with aggravated battery and face adult prison. So why should an incarcerated 18-year-old juvenile be treated more favorably than another 18-year-old on the street and not incarcerated, who spits in the face of a policeman?

Do you really think judges send delinquents to Harrisburg for “insignificant” first offenses? Probation is almost always tried first, except for serious or violent offenses.

But assuming for purposes of argument that “rehabilitation” is the only purpose of a delinquency proceeding, that is not true in an adult prosecution. Therein, while rehabilitation remains a goal of sentencing, it must be balanced against the need to punish, and deter the offender and others, and protect the public.

Yet, in its pleading, the ACLU pooh poohs the Harrisburg staff’s concerns:

“The staff are concerned that there are fewer consequences for serious misconduct and they express the questionable opinion that the threat of being placed in [solitary] confinement is a valuable deterrent to aggressive and assaultive youth.”

OK. So, what other “meaningful alternative” is there? What if each of the roughly 126 delinquents at the Harrisburg spits in the face of every guard who comes within range? What if just five do? What if one or more of the spitters carry AIDS or some other infectious disease? What if 24-hour detention is inadequate to stop the spitting?

If you can’t put the spitters in solitary, and/or prosecute those who have reached the age of 18 as adults for aggravated battery, what are the guards supposed to do? Wear hazmat suits?

I have long believed, that except for the most serious abuses, judges are not competent to run prisons. Federal judges have no jurisdiction to prosecute inmates for state law violations, such as disorderly conduct, battery or aggravated battery. Their injunctions typically only tell the prison authorities (not the inmates) what they can or cannot do.

If you enjoin the use of solitary confinement, and adult prosecutions, what’s left?

Can a guard whack a spitter with a billy club? Perhaps up to three times, but not too hard? If solitary for more than 24 hours is “cruel and unusual punishment,” why wouldn’t billy clubbing be deemed worse? The pillory have been verboten since colonial times. Is the judge going to approve the guards using self defense? Can they spit back? Punch the spitter in the nose? Or are they expected to imitate Atticus Finch?

What would the ACLU attorneys do if every time one of them visited a Harrisburg inmate, the inmate spat in his face? What would the federal judge do if he became the target?

Rehabilitation of juvenile inmates is a worthy goal. But rehabilitation requires the cooperation of the juvenile. Spitting on correction officers hardly seems consistent with the juvenile seriously working to “rehabilitate” himself.

Posted: QCOline.com August 1, 2017
Copyright 2017, John Donald O'Shea