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Trump lawyer argues president couldn't be prosecuted if he shot someone on fifth avenue

MTAtech said:
Please cite the Article and Section of the constitution that states that presidents are immune from prosecution. I've searched high-and-low and can't find it but surely you must know because you are making that assertion, above.
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That's probably because you were searching for an explict, textual grant of immunity, whereas immunity is derived from the separation of powers doctrine and the fact that Congress is given the sole power of impeachment and prosecution. The idea that a state court and 12 jurors can override all of this is nonsene.
 
HenryChinaski said:
Show where it's written in the US constitution or any Federal law for that matter that where the President of the United States is above the law and immune from prosecution for committing crimes.
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Why do you think the President is above the law? Also, nobody has claimed he is immune from prosecution for committing crimes - immunity extends only to the period while he is in office.
 
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Taylor said:
That's probably because you were searching for an explict, textual grant of immunity, whereas immunity is derived from the separation of powers doctrine and the fact that Congress is given the sole power of impeachment and prosecution. The idea that a state court and 12 jurors can override all of this is nonsene.
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No, what you wrote is nonsense. There was never any intent for the president to be immune from prosecution federally or by the states. It isn't even mentioned in the Constitution, while at least it is partially mentioned for Congress. Art. 1, Section 6.

"They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place."
 
Taylor said:
Why do you think the President is above the law? Also, nobody has claimed he is immune from prosecution for committing crimes - immunity extends only to the period while he is in office.
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That has yet to be decided by the courts. In essence, the separation of powers argument is one that says one branch of government cannot control the other branch of government but that was decided in Marbury long ago. That decision set up the courts as the sole arbiter of the constitution giving them absolute power over the other two branches. Following this logic, if the courts can forbid the other branches from doing something unconstitutional, then it shows that the separation of powers argument being made by Trump is incorrect. All it would take is for the courts to indict a sitting President and try him for crimes against the constitution either in a trial or via Congress in the impeachment process. There is nothing forbidding the court from jailing a sitting President. That President would remain POTUS even in jail but he or she would not be immune from prosecution by the courts. This may not be true for a crime defined by state law but if the state went through the federal court system and POTUS was found guilty, the same logic would apply. Trump has revealed several flaws in the constitution which future governments must close up and fix. It was never imagined that we would have a POTUS like Trump. Yet here we are.
 
MTAtech said:
No, what you wrote is nonsense. There was never any intent for the president to be immune from prosecution federally or by the states.
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Scores of DOJ lawyers from at least three different administrations representing both sides of the aisle beg to differ. Sorry.
 
Taylor said:
Scores of DOJ lawyers from at least three different administrations representing both sides of the aisle beg to differ. Sorry.
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Citation needed.

You can't declare yourself the winner of a debate by pointing at others who may agree. There are plenty who disagree.

Jens David Ohlin, law professor, Cornell University

Mueller is faithfully following DOJ policy, but the DOJ policy is just plain wrong. Mueller says that a president can be investigated but neither indicted nor accused. And his argument for not accusing him of a crime is that it would be “unfair” to accuse someone who does not have a courtroom to protest his or her innocence.

But that is completely absurd: The president doesn’t have a courtroom to vindicate his innocence only because the DOJ has decided that his office makes him immune from indictment in the first place. It’s a piece of circular reasoning that removes the president from the scope of generally applicable criminal laws.

Ciara Torres-Spelliscy, law professor, Stetson University

To be clear, there is nothing in the Constitution that states that a sitting president cannot be indicted. Language from the Clinton v. Jones and US v. Nixon cases indicates that the president is not above the law. If federal prosecutors refuse to hold the president to the same legal standard as any other citizen, state attorneys general could certainly charge a president with a state crime with sufficient evidence.
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Vadinho said:
That has yet to be decided by the courts. In essence, the separation of powers argument is one that says one branch of government cannot control the other branch of government but that was decided in Marbury long ago. That decision set up the courts as the sole arbiter of the constitution giving them absolute power over the other two branches.
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No, the judiciary doesn't have absolute power over the other branches. The judiciary has neither the power to legislate, nor the power to prosecute or execute laws. The lower courts exist at the whim of the legislature, which can overturn any judicial decision via constututional amendment while the executive can pardon anyone judged to have broken the law.

Vadinho said:
There is nothing forbidding the court from jailing a sitting President.
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Well, there's the law, and there's the fact that the court doesn't have a police force. Again, no "absolute power".
 
MTAtech said:
Citation needed.

You can't declare yourself the winner of a debate by pointing at others who may agree. There are plenty who disagree.

Jens David Ohlin, law professor, Cornell University
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Until and unless Ohlin takes a position in the DOJ, or as a federal judge, his opinion is fairly irrelevant.

Please do read the pages of analysis and opinion documented by the DOJ over the past 50 years. It is just as easy for you to look them up as it is for me. I've already read most of it. I suggest you do the same - or at the very least a summary.

MTAtech said:
Mueller is faithfully following DOJ policy, but the DOJ policy is just plain wrong. Mueller says that a president can be investigated but neither indicted nor accused. And his argument for not accusing him of a crime is that it would be “unfair” to accuse someone who does not have a courtroom to protest his or her innocence.

But that is completely absurd: The president doesn’t have a courtroom to vindicate his innocence only because the DOJ has decided that his office makes him immune from indictment in the first place. It’s a piece of circular reasoning that removes the president from the scope of generally applicable criminal laws.
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I'm not sure you understand what an indictment is. Or at least, the difference between an indictment and a trial.
 
Taylor said:
No, the judiciary doesn't have absolute power over the other branches. The judiciary has neither the power to legislate, nor the power to prosecute or execute laws. The lower courts exist at the whim of the legislature, which can overturn any judicial decision via constututional amendment while the executive can pardon anyone judged to have broken the law.


Well, there's the law, and there's the fact that the court doesn't have a police force. Again, no "absolute power".
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I was lazy in my use of modifiers. When I said absolute power, I meant in applying the constitution to actions or laws made by the other two branches. The courts don't have a police force but were they to be unable to enforce the law because no other police force would act, we would have a constitutional crisis. We may be on the verge of one right now.
 
Vadinho said:
I was lazy in my use of modifiers. When I said absolute power, I meant in applying the constitution to actions or laws made by the other two branches. The courts don't have a police force but were they to be unable to enforce the law because no other police force would act, we would have a constitutional crisis. We may be on the verge of one right now.
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"Constitutional Crisis" is being used so often these days thst it's quickly becoming a meaningless term.
 
Taylor said:
"Constitutional Crisis" is being used so often these days thst it's quickly becoming a meaningless term.
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Certainly but surely you agree that if the courts decided the executive must do X and they refuse, it would be a constitutional crisis. That is the very definition of it. If the Justice department refuses to carry out a direct order from the courts, then we will face a crisis of confidence in our constitution.
 
Vadinho said:
Certainly but surely you agree that if the courts decided the executive must do X and they refuse, it would be a constitutional crisis. That is the very definition of it. If the Justice department refuses to carry out a direct order from the courts, then we will face a crisis of confidence in our constitution.
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You really think we are on the verge of this happening?
 
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