Indicting Bush and Cheney (from Dailykos)

[shraby]

Vice President

Precedent exists to indict a Vice President.

Vice President Aaron Burr was subject to indictments in two states while still in office. Burr stayed out of those two states to avoid prosecution.

In the case of Spiro Agnew, Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution. While still Vice President, Agnew plea bargained a deal in which he plead "no contest" to tax evasion. He resigned the same day he entered his plea.

President

For a President, there is no clear precedent one way or another. The closest is the case of Nixon. The Grand Jury reportedly wanted to indict Nixon. Prosecutor Jaworski convinced them to avoid the issue of whether the President may be indicted by naming him as an unindicted coconspirator. This was sufficient to get a subpoena for Nixon's records including the tapes. Nixon argued that the subpoena was invalid because he was not subject to indictment. The Supreme Court sidestepped the indictment issue by ruling that they did not need to answer that question in order to reach their conclusion that the subpoena was valid. United States v. Nixon, 418 U.S. 683, 687 n. 2 (1974).

There is not a single word in the Constitution that supports a claim that the President cannot be indicted. On the contrary, the Constitution merely says this about impeachment:
Article I, Section 3, 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.

(much more)

<http://www.dailykos.com/story/2005/10/18/22350/485>

According to him, Bush CAN be indicted. Well worth a read.

[berni_mccoy]

1. CAN, yes. Will it stand with the Supreme Court? Probably Not.

I'd rather have Bush as unindicted co-conspirator and get a TON of things via SUBPOENA than have the indictment go away and lose any power of getting at the info.

The EVIDENCE is CRITICAL and Bush is already showing signs of ineffectiveness without the full attention of his staff (who are currently, quite distracted).

[tritsofme]

2. Here is the current position of the Justice Department:

A Sitting President's Amenability to Indictment and Criminal Prosecution*

The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

October 16, 2000

MEMORANDUM FOR THE ATTORNEY GENERAL

In 1973, the Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination.1 We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.

The Department's consideration of this issue in 1973 arose in two distinct legal contexts. First, the Office of Legal Counsel ("OLC") prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office. See Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) ("OLC Memo"). The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process. Second, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew. In response to a motion by the Vice President to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution. See Memorandum for the United States Concerning the Vice President's Claim of Constitutional Immunity (filed Oct. 5, 1973), In re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States (D. Md. 1973) (No. 73-965) ("SG Brief"). In so arguing, however, Solicitor General Bork was careful to explain that the President, unlike the Vice President, could not constitutionally be subject to such criminal process while in office.

In this memorandum, we conclude that the determinations made by the Department in 1973, both in the OLC memorandum and in the Solicitor General's brief, remain sound and that subsequent developments in the law validate both the analytical framework applied and the conclusions reached at that time. In Part I, we describe in some detail the Department's 1973 analysis and conclusions. In Part II, we examine more recent Supreme Court case law and conclude that it comports with the Department's 1973 conclusions

<SNIP>

http://www.usdoj.gov/olc/sitting_president.htm

Its a good 50 pages long.

This is an issue that has intrigued me for quite some time.

[shraby]

3. The argument for this that the writer puts forth

is the 25th amendment that provides for a president that's incapacitated.

[ToolTex]

4. Thanks to all for this thread.

I couldn't remember the plea bargain situation with Agnew. I guess it didn't make quite the impact that Nixon's Louis XIV argument made.

I predict this won't end pretty. I think they won't honor the Law and orders. Then it will take about six months for it to sink into the People's understanding, and another six months of economic depression. Then the real struggle will start. Who knows how it may play through and out. If they win it probably means a 1,000 years of darkness and pain for the world. If we People win, we will be broke, fewer, thinner, colder, and maybe free for another generation.

It will require a bigger purge than just inside the beltway. His "base" will have to be dealt with one way or another. About one in three! So we go from about 300 mil to about 200 mil. of us we's. That's about twice the number killed in Europe during the Protestant Reformation during the 30 Years War. Chalk up another bloodbath to Christianity.

Is this a bit too harsh or pessimistic?