Balkinization: A President Taking the Fifth

Comments:

It could also be interpreted as mere reluctance to pardon himself.

# posted by

McJangles : 11:41 AM

I understand Trump doesn't partake go booze, just bozos. Regarding such civil suits governed by state law, in addition to taking the fifth Trump might have to take the fourteenth, thanks to John Bingham et al. In either event, such a constitutional claim would not be a tacit admission against self-pardon.

# posted by

Shag from Brookline : 11:42 AM

POTUS enjoys both tools. Why would the pardon power preclude the right to silence? Just because the tools are duplicative does not mean one is unavailable.

# posted by

Bart DePalma : 11:49 AM

He's not obligated to incriminate himself, just because he has the pardon power.

Besides, did you forget that he can't pardon state offenses?

# posted by

Brett : 12:20 PM

Let's recognize that it is far from certain whether the pardon power includes self-pardon despite the views of the Three Stooges, one of which is Rudy. Two guesses as to the other two.

CORRECTION: In the first sentence of my 11:42 AM comment "go" should be "of". Never trust a man who doesn't drink.

https://www.goodreads.com/quotes/620132-son-never-trust-a-man-who-doesn-t-drink-because-he-s

http://lonniebruner.blogspot.com/2004/12/never-trust-man-who-doesnt-drink-wc.html

# posted by

Shag from Brookline : 1:15 PM

A president can't pardon state offenses, but the context of the OP seems to be the Cohen plea and the Daniels lawsuit (or similar ones), where the crime appears to be exclusively a federal one.

# posted by

Mark Field : 1:56 PM

He could also decline to incriminate himself just because he feels he is above explaining himself to the little people. Isn't that one of his tenets, "Never apologize, never explain"?

# posted by

Warren : 2:35 PM

Trump either way might want to avoid pardoning himself (unless he really had to) so easily could think taking the Fifth was the path of least resistance. I'm not sure why he couldn't take the Fifth even if he could pardon himself. Until he self-pardoned, something might incriminate him.

# posted by

Joe : 2:45 PM

Perhaps Gerald is thinking of Burdick v. US?

# posted by

Mista Whiskas : 3:23 PM

He'd be well advised not to permit Mueller to get him under oath without a lawyer present, because Mueller has already demonstrated a proclivity for perjury traps, in going after Flynn, as well as in the past.

That given, it's just a question of how he arranges to avoid it. The problem with taking the 5th is that you take it in regards to specific lines of questioning, and he can't really be sure in advance what Mueller would decide to claim was perjury.

His best bet is to simply refuse to talk to Mueller, on the basis of executive privilege, and offer to answer a series of written questions with assistance of counsel. That should give Mueller everything he could actually need, even if it takes several go-arounds.

If Mueller won't accept that, it's a perjury trap for sure.

# posted by

Brett : 3:59 PM

The earlier case was followed up by Biddle v. Perovich, where SCOTUS said that a pardon

is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate [executive] authority that the public welfare will be better served by inflicting less than what the judgment fixed.

The idea someone can "refuse" a pardon is questionable especially if the alternative is the government keeping a person detained or even executing the person. Also, it it is a matter of the "public welfare," accepting a pardon need not mean the person is accepting guilt. In fact, a pardon might come when guilt is quite debatable and a possible abuse of justice was involved. OTOH, it very well is often inferred to mean that.

# posted by

Joe : 4:14 PM

It's not a "perjury trap". It's just plain perjury.

Whether executive privilege would allow him to escape talking to Mueller -- either in a private interview or under oath -- is an open question. First, it's unclear if executive privilege applies in any criminal case. It doesn't when it comes to documents; who knows what the Court would decide if it came to testimony. Second, the election theft occurred before Trump was elected (obviously), so it's hard to see how executive privilege would apply factually.

# posted by

Mark Field : 4:23 PM

Watching conservatives sudden concern about prosecutorial/law enforcement powers and overreach is wonderful, but watching the same people who you know championed the Clinton impeachment (and who were pushing for Hillary Clinton and affiliates to be prosecuted for perjury even more recently) complain about 'perjury traps' is priceless.

Let's review where we are.

A top foreign policy adviser for the Trump campaign and the later NSA head under the Trump administration has pled guilty to lying about his being a literal foreign agent.

Another top adviser for the Trump campaign pled guilty to lying about his efforts to coordinate what he thought were Russian government connected persons with the Trump campaign to 'get dirt' on Trump's opponent.

The literal campaign manager of the Trump campaign has been found guilty of eight counts of charges of hiding money channeled to him by pro-Russian Ukrainian sources. Another campaign adviser did the same, he testified against the campaign manager.

Trump's long time lawyer has pled guilty to campaign violations and tax/bank fraud in making a payment to adult entertainers to keep them quiet about affairs they had with Trump. He said he broke the law “in coordination with and at the direction of a candidate for federal office," Trump.

If even a scintilla of this were true about an official with a fraction of the connection to a Democratic presidential candidate, our resident conservative propagandists would never let us hear the end of it (for proof of this, remember this wacky theory we heard about in the comments here, now debunked it will be discarded and something new will be tossed on the wall to see if it will stick for a while: http://www.chicagotribune.com/news/nationworld/politics/ct-congressional-staffer-conspiracy-theories-20180703-story.html).

# posted by

Mista Whiskas : 4:51 PM

Since I didn't find the questions posed too compelling, one off topic thing ...

GM over at Concurring Opinions Blog has had various posts on Corfield v. Coryell, about which he is writing a paper. He also might write a book on the author. The posts are interesting and the paper sounds more interesting as well than his ERA ideas (a loaded gun, btw, that still might go off ... who is to know).

# posted by

Joe : 5:18 PM

Joe, I'm not sure what Gerard is getting at, but I'm fairly certain he's quite bright and learned, so maybe what he's getting at is this:

If you get a pardon you lose your fifth amendment right (see Nixon v. Sampson (1975), "a pardon dispels any possibility that a fifth amendment claim could be cognizable"), so maybe it works in reverse, so to speak; asserting your fifth amendment rights shows that a pardon isn't available to you (or maybe at the least that you don't think it is).

# posted by

Mista Whiskas : 6:10 PM

MW, that's the way I understood it.

# posted by

Mark Field : 6:28 PM

"It's not a "perjury trap". It's just plain perjury."

Oh, come off it. Perjury charges aren't filed by the goddess Themis descending from the heavens in response to cosmic untruth. They're filed by human and corruptible prosecutors, who often have agendas.

And Mueller has a history of setting perjury traps. They secured NSA transcripts of a perfectly legal conversation Flynn had, set up an interview without any time for preparation or advance notice of the topic, and charged him with perjury for not having a perfect memory. Even the agents who conducted the interview thought it was an innocent mistake.

You don't have to lie to be charged with perjury. A mistake will do, if the prosecutor isn't willing to admit it's a mistake. Even the truth can get you charged with perjury, if the prosecutor has a witness willing to himself commit perjury, and no objective evidence is available to prove which of you is right.

# posted by

Brett : 6:59 PM

Brett, you're just misusing the term "perjury trap". For a definition, see https://definitions.uslegal.com/p/perjury-trap-doctrine/

Note particularly this sentence:

"When testimony is elicited before a grand jury that is attempting to obtain useful information in furtherance of its investigation, or conducting a legitimate investigation into crimes which had in fact taken place within its jurisdiction, the perjury trap doctrine is, by definition, inapplicable. [United States v. Chen, 933 F.2d 793 (9th Cir. Guam 1991)]"

Flynn was not caught in a perjury trap. If he had been, his defense counsel could have gotten the charges dismissed. Flynn pleaded guilty to perjury because he made a plea deal and that was the charge agreed to. He made the plea deal because he was actually guilty of more significant crimes and knew the prosecution could prove it BARD.

Nor is Trump at any risk of a perjury trap. But since Trump lies whenever his lips are moving, he's certainly at risk of actual perjury.

# posted by

Mark Field : 7:10 PM

"You don't have to lie to be charged with perjury. A mistake will do, if the prosecutor isn't willing to admit it's a mistake. Even the truth can get you charged with perjury, if the prosecutor has a witness willing to himself commit perjury, and no objective evidence is available to prove which of you is right."

Yes, you do have to lie. Perjury is *willfully* saying something the witness does not believe to be true. https://www.law.cornell.edu/uscode/text/18/1621

As for your hypothetical, of competing witnesses, and no other evidence at all, that's highly unlikely to pass muster under the BARD standard.

# posted by

Mark Field : 7:14 PM

Brett's 6:59 PM is a more coherent version of Rudy's "truth isn't truth." Should this Three Stooges defense be available to all persons who are "asked" to respond to federal officials conducting investigations?

A wise man referred to Trump as a "walking epitaph:" "HERE, THERE, EVERYWHERE LIES DONALD J. TRUMP."

Manafort might consider what another wise man said: "When the judicial system hands you lemons, make lemonade! And don't drink the Trumpaid [sic]."

# posted by

Shag from Brookline : 7:24 PM

Brett doesn't seem to have been aided by his binge watching of "Law & Order" episodes. But as a loyal troll at this Blog, Brett continues to push the Trump talking points. Alas, Rudy is not a good mentor for Brett.

# posted by

Shag from Brookline : 7:29 PM

I noted just a few minutes ago Gerard's "UPDATE" but it isn't clear exactly when it was posted. Did this UPDATE moot the question posed by Gerard in his original post? Pardon me for asking.

# posted by

Shag from Brookline : 7:47 AM

OFF TOPIC: Over at the Originalism Blog there is this recent post: "Most Cited Originalist Scholars, 2013-2017"

This can serve as a scorecard for identifying originalists. However, the post does not describe the vagaries and varieties of originalism to which those listed subscribe. Our host Jack Balkin at this Blog is listed second. Also listed are some scholars who may not be self-described originalist but who write on originalism from time to time. Perhaps for contrast the Originalism Blog might list "Most Cited Non-Originalist Scholars 2013-2017" challenging the vagaries and varieties of originalism.

# posted by

Shag from Brookline : 9:02 AM

Mark: Brett, you're just misusing the term "perjury trap". For a definition, see https://definitions.uslegal.com/p/perjury-trap-doctrine/

A "perjury trap" has a much broader meaning that the entrapment defense which utilizes the term.

Law enforcement and/or a prosecutor wishing to spring a perjury trap poses a large number of questions about events which are often years old with often only a theoretical relationship to the subject of the investigation to a large number of witnesses who generally answer without the benefit of records or counsel. When another witness disagrees with the target, then the target is charged with lying to law enforcement. At trial, there is no need to prove the other witness is telling the truth, the prosecutor simply notes the disagreements.

Yes, you do have to lie. Perjury is *willfully* saying something the witness does not believe to be true. https://www.law.cornell.edu/uscode/text/18/1621

This is proven circumstantially through the disagreements and generally forces the target to testify in order to prove his or her innocence.

Even if he or she convinces the jury to acquit, the target is now bankrupt and their reputation is trashed.

These are the reasons why predatory prosecutors like Mueller use perjury traps to strong arm witnesses to work for them.

# posted by

Bart DePalma : 10:07 AM

Perhaps SPAM shares Trump's view that certain plea deals should be made illegal. I wonder how criminal defense attorneys who represent defendants charged with crimes more severe than DUI would feel about that. SPAM's reference to "predatory prosecutors like Mueller" suggests that SPAM is tightly in the saddle with Trump. Keep in mind that the plea deals in question involved defendants represented by experienced criminal attorneys rather than criminal attorneys who practice primarily in local police courts.

# posted by

Shag from Brookline : 10:26 AM

Shag: SPAM's reference to "predatory prosecutors like Mueller" suggests that SPAM is tightly in the saddle with Trump.

This is a great illustration of the fundamental danger to a republic of weaponizing law enforcement against political opponents.

A criminal justice system only works so long as the people believe it is generally applied equally and impartially. When one political faction uses law enforcement as a sword against another faction, supporters of the faction wielding the sword become good Germans and cheerlead the abuse, while supporters of the target faction come to view the criminal justice system as a tool of oppression.

It is truly scary to see Alan Dershowitz making his lonely rounds of the media as the sole voice on the left calling out the clear and present danger. The sword used against Trump today can be used against a progressive Democrat in the future.

First they came for the socialists, and I did not speak out—because I was not a socialist.
Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist.
Then they came for the Jews, and I did not speak out—because I was not a Jew.
Then they came for me—and there was no one left to speak for me.
Martin Niemöller

# posted by

Bart DePalma : 10:41 AM

Aren't there some FL social connections between Trump and the Dersh going back a couple of years pre-Trump campaign? The Dersh ceased being a voice on the left years ago as he became more and more self-centered. In fact, the Dersh has become scary. SPAM's efforts to make a martyr of Trump would be scary if SPAM had the Dersh's resume, but it's laughable probably even within SPAM's rural "domain" in CO. SPAM's use of Martin Niemoller in defense of Trump is ludicrous, based upon Trump's history, including on "some nice" neo-Nazis in Charlottesville a little over a year ago marching with their anti-semetic signs. And SPAM's use of the phrase "clear and present danger" is moronic, including in the context of the 1st A.

# posted by

Shag from Brookline : 11:17 AM

This comment has been removed by the author.

# posted by

Joe : 12:27 PM

a pardon dispels any possibility that a fifth amendment claim could be cognizable"

That's logical since incrimination no longer attaches. Related, a grant of immunity can result in someone required to testify. As to the fact a pardon implies guilt, (1) legal incrimination still doesn't attach [at least to the sovereign in question] (2) the implication as I noted can be taken too far. Anyway, #1 is the legal reason the person can't take the Fifth.

Meanwhile, merely not incriminating oneself doesn't make a pardon unnecessary. And, the possibility of being able to self-pardon doesn't mean one would want to go that route if they could avoid it simply by testifying. So, the questions seemed off to me.

As to how bright he is, Jacob DeGrom this season had an off day & remained pretty great.

# posted by

Joe : 12:30 PM

Mark, I'm well aware that "perjury trap" has a specific meaning related to grand juries, in addition to the more general sense of "requiring testimony you don't actually need, in order to have an excuse to charge somebody with perjury".

It was in that latter sense I used the term.

It is rather transparently obvious that if you obtain a transcript of a perfectly legal phone conversation, and then quiz one party to it under oath, and then charge them with perjury for getting the details you already knew wrong, you did it just to have an excuse to charge them.

And so, if Mueller has questions for Trump, and refuses to have them answered in the form of lawyer vetted written answers, but instead demands an in person interview, anybody with the least sense knows he's doing so for the purpose of claiming Trump committed perjury. Since the only legitimate purpose he could have is gaining information, and the written responses are likely to be much more concise and detailed.

# posted by

Brett : 1:15 PM

I can assure you that no lawyer on earth believes that "lawyer vetted answers" are as good as actual testimony.

But you're just trying to change the definition of "perjury trap". If there's a legitimate reason to ask a question -- that is, reasonable cause to investigate an underlying crime -- then there is no "perjury trap". In addition, perjury requires a *willfully* false response. Getting the details wrong happens every single day in every single case. People don't get charged with perjury for that.

Trump is in no danger of being "trapped" into committing perjury. He's in danger if he's placed under oath and lies the way he always does.

# posted by

Mark Field : 2:46 PM

"In addition, perjury requires a *willfully* false response."

Committing perjury requires a willfully false response. Being charged with perjury merely requires a response the prosecutor doesn't like.

# posted by

Brett : 3:01 PM

Being charged with perjury requires that the prosecutor put in writing the exact statement which was false, plus evidence showing that the falsity was willful. That can then be tested in court before trial for whether it meets the legal standard.

# posted by

Mark Field : 3:26 PM

Mark:

Nearly all indictments or informations merely allege a violation of each element of the criminal statute and rarely offer evidence.

The only bit of evidence normally included in a perjury indictment is the alleged false statement itself.

You can find a sample indictment here on the Justice site.

# posted by

Bart DePalma : 3:41 PM

I can assure you that no lawyer on earth believes that "lawyer vetted answers" are as good as actual testimony.

Neither does this non-lawyer. One obvious reason is that these written answers do not permit followup or probing of vague or unresponsive answers.

# posted by

byomtov : 3:47 PM

There's a materiality requirement to perjury too, guys.

If a prosecutor really does ask someone about irrelevant matters to induce a lie, that's not perjury at all because the matters are not material.

# posted by

Dilan : 3:47 PM

Another is that they're coached.

# posted by

Mark Field : 3:48 PM

In the specific case we're talking about Flynn agreed that the Statement of the Offense (which can be found on his Wikipedia entry page) describing his numerous falsehoods to investigators (and which were hardly 'traps') 'fairly and accurately describe[d]' his 'actions and involvement in the offense' to which he pled guilty (the latter quote is from his plea agreement, which also is not difficult to find online).

Flynn was by any definition a wealthy man with the highest of connections and potential support, if he signed on to that he was confident Mueller's team could prove it (or had a good chance of proving worse).

Let's remember that Flynn was such a liar that the Trump administration let him go ostensibly for lying to them!

# posted by

Mista Whiskas : 4:00 PM

Dilan:

Materiality during a criminal investigation is damned broad.

For example, let's say I am investigating you for entering into a conspiracy with Russia to hack the DNC. I can legitimately ask you questions concerning your whereabouts, communications, financial transactions and any other subject matter area relating to motive over any reasonable period of time to compare with suspected Russian co-conspirators.

Perjury traps are extremely easy to execute. All you need is a memory lapse.

# posted by

Bart DePalma : 4:00 PM

"There's a materiality requirement to perjury too, guys."

And there's a "can afford to contest the charge" requirement to being acquitted, too. Which isn't really an issue for Trump, of course, but it's the deciding factor for most people charged with perjury, as Flynn demonstrated.

# posted by

Brett : 4:01 PM

It's laughable that Flynn only signed the plea agreement because he couldn't afford to fight it. Wealthy people with the highest connections don't do that.

# posted by

Mista Whiskas : 4:06 PM

It's objectively laughable.

# posted by

Joe : 4:11 PM

Memory lapse my tush.

To take one actual example of Flynn's lies he pled guilty to: when Obama announced sanctions against Russia Flynn was contacted by the Russian ambassador. The next day Flynn called the Trump transition team and discussed what he, as an adviser to Trump, should tell the Russian ambassador about the sanctions. He was told to tell the ambassador the team did not want Russia to escalate matters in response to the sanctions. Flynn then IMMEDIATELY called the Russian ambassador and told them that. He then 'shortly after' called the campaign team to report on his discussion with the ambassador. The ambassador then called Flynn and informed him that the Russian government decided not to escalate after the Russian government's decision not to escalate was announced. Flynn then called the transition team to report the latest call from the ambassador.

When asked during the investigation if he asked the Russian ambassador to refrain from escalation in response to the sanctions he said he did not. He also said he didn't remember the ambassador's call back.

That's not a 'memory lapse.' The man either has dementia or was lying.

# posted by

Mista Whiskas : 4:20 PM

Btw-that's just ONE of the lies described in the statement of the offense that Flynn signed as being accurate of what he did.

Memory lapse my behind.

# posted by

Mista Whiskas : 4:21 PM

To take an example, Bill Clinton had a far lower net worth when he faced impeachment in 1998 than Flynn had facing that plea agreement.

I'm sure Brett and Bart were screaming about perjury traps and can afford to contest the charge requirements back then...

# posted by

Mista Whiskas : 4:39 PM

Based on comments made by SPAM and Brett at this Blog, they were around during Watergate, although I don't know for sure how old they were at the time. I was in my 40s and followed with care the unfolding of Watergate. Russiagate is being exposed more quickly than Watergate. Add to Russiagate the criminal travails of Cohen and Manafort and especially matters unfolding from Cohen's guilty pleas that may be getting into the Russiagate investigation. Trump is a desperate man at this point, in fact he is a national security risk. Session has earlier today stood up to Trump's recent attacks on him. Trump claims he wouldn't be impeached because of its impact on the stock market. Huffington Post has a headline today: "Trump has lost his Pecker" who was granted immunity in connection with the federal investigation into Michael Cohen involving the National Enquirer's role in silencing a Playmate claiming an affair with Trump. Meantime Brett and SPAM are focusing on a possible "perjury trap" following Rudy G's Three Stooges defense that "truth isn' truth."

# posted by

Shag from Brookline : 5:07 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 5:36 PM

Mr. W: To take an example, Bill Clinton had a far lower net worth when he faced impeachment in 1998 than Flynn had facing that plea agreement.

The Clintons were actually deeply in debt after defending Bill's felonies. They only recovered financially by selling political influence over the next several years, an option unavailable to Gen. Flynn (ret.)

I'm sure Brett and Bart were screaming about perjury traps and can afford to contest the charge requirements back then...

Unless the Paula Jones civil attorneys were aware of Monica Lewinski's DNA stained dress she kept as a souvenir of her presidential fellatio, it is highly unlikely they were laying a perjury trap during their civil deposition of Slick Willy.

On the other hand, GOP Congress critters were most definitely laying perjury traps for Hillary when she appeared before them under oath. They knew most of the facts and Clinton's prior lies to cover them up. Congress's problem was a lack of prosecution power and a Democrat media spiking stories of their dowager queen's various perjuries.

# posted by

Bart DePalma : 5:45 PM

Flynn is worth many times what Bill Clinton was at the time, and of course he had plenty of political star power available. If he had wished to play the usual conservative victimology card people would have sent him plenty of cash even if his many millions couldn't have covered him. And this is not to mention his connections.

"a Democrat media spiking stories"

Of course, in the real world the supposed 'Democrat media' spent more time covering a Hillary scandal that turned out to be a nothing-burger than any other presidential campaign related story.

"GOP Congress critters were most definitely laying perjury traps for Hillary when she appeared before them under oath"

I remember you and Brett complaining about these 'perjury traps...' Oh, that's right, I don't! Because it's principals not principles with movement conservatives.

# posted by

Mista Whiskas : 6:01 PM

Mr. W:

My complaints concerning "perjury traps" concern the perpetrator, not the target.

You expect politicians to corruptly abuse the system to advance partisan goals. Its loathsome, but expected. Both sides do it. As I noted, however, they have little power to act upon these abuses.

In contrast, a prosecutor has the power to destroy your life, When law enforcement is weaponized to punish the political opposition, you have Venezuela or Putin's Russia. What is worse is every single Democrat here, most especially you and Shag, are playing good Germans and cheering on this persecution for no other reason apart from partisan hatred.

Gentlemen, this is the stuff which ignites civil wars and you are pouring on the gasoline.

# posted by

Bart DePalma : 8:46 PM

"When law enforcement is weaponized to punish the political opposition"

Hilarious. Which side chanted, and even *still* chants, 'lock [them] up' regarding their political opponent? Not 'beat so and so' in an election, but 'lock them up?' Jail for Hillary! When the process cleared Hillary Clinton they, of course, rejected it, and called for law enforcement and prosecutors to re-double their efforts. They were calling for Clinton and other Democrats to be prosecuted or impeached for perjury just almost *yesterday* and here they are suddenly bellaching about it when applied to someone with an R beside their name.

More generally, Bart and other conservatives' sudden concern about too much law enforcement/prosecutorial power is quite comical. Which side appoints justices that rule in favor of prosecutorial and law enforcement power vs. the rights of the accused more? Conservatives. Which side professes being 'tough on crime' and grows the power of prosecutors/law enforcement while starving public defender resources? Conservatives. As long as it was poor, regular folk on the end of that conservatives have had no problem. Like their new leader, it is only when they or their side is threatened do they suddenly discover the principles they have been so quick to dismiss. No one should take them seriously on it.

The talk of Germans is the usual nonsense hyperbole, the 'Big Lie' so to speak. We have a President who put people in positions of authority that anyone who knew about them knew they were in bed with a hostile foreign power. People that were being investigated and talked about in their circles as being likely Russian operatives *before Trump even declared his Presidency.* We have example after example after example of people connected with this administration and it's preceding campaign of having suspicious ties and contact with the Russians and lying about it; we have the conclusion of our and other intelligence agencies concluding the Russians worked to interfere in our election to help a particular candidate; we have that candidate oddly avoiding harsh criticism of Russia though he easily criticizes everyone else. Unlike most movement conservatives I'm a consistent proponent of limiting prosecutorial and law enforcement power in general, but no one wants our prosecutors and law enforcement to be helpless to stop something like what seems to have happened here. Well, no one who loves their country (and not just their party) does....

# posted by

Mista Whiskas : 9:03 PM

BD: "When law enforcement is weaponized to punish the political opposition"

Mr. W: Hilarious. Which side chanted, and even *still* chants, 'lock [them] up' regarding their political opponent?

This is the flip side of the same corrupt coin - The faction who abused law enforcement as a sword against their political opposition also uses law enforcement as a shield to excuse the crimes of their own political royalty. Both sides of that coin are equally dangerous.

More generally, Bart and other conservatives' sudden concern about too much law enforcement/prosecutorial power is quite comical.

Dude, I am part of the criminal defense bar and my job is to stop government abuses of my clients.

Libertarians like Brett and I constantly advocate for limits on government power to abuse the people. I have no more patience for "conservative" totalitarians than I do the "progressive" variety. However, as Dershowitz's lonely crusade demonstrates, there is no real equivalence between the two sides. Nearly all self-identified "progressives" are totalitarians.

The talk of Germans is the usual nonsense hyperbole, the 'Big Lie' so to speak. We have a President who put people in positions of authority that anyone who knew about them knew they were in bed with a hostile foreign power.

Good God! You really have no grasp of the German history of this period. The Nazis used your exact argument to persecute many of their political opponents as Soviet puppets.

You are very much a prototypical good German.

# posted by

Bart DePalma : 9:26 PM

Watching conservatives like Bart and Brett pretend to be civil libertarians is like those videos with dogs dressed in human clothes walking on their hind legs, the unnaturalness of what they're trying to do is laughingly obvious.

In Bart's first paragraph he essentially tries to offer up some non-falsifiable gobbledygook to cover up the fact that he and other conservatives have been the *epitome* of trying to fight political battles with law enforcement/prosecutorial tools. It was his side that didn't want to beat Hillary Clinton in an election (and before that Bill Clinton), but insisted they were criminals (murderers even!) and had to be investigated and the investigations just *had* to conclude they were criminals and 'lock them up' and when they didn't, well, that just proves even more their criminal perfidy and the cover ups! All the tools Bart bemoans when applied to Trump and his men were ones that they urged be applied to Bill and Hillary Clinton. Principals over principles.

"The Nazis used your exact argument to persecute many of their political opponents as Soviet puppets."

Bart has proven woefully bad at getting analogies in past arguments, so this it's a bit unsurprising that his latest attempt is something akin to 'the Nazis persecuted their enemies by saying they were Russian agents therefore anyone who ever says that anyone is a Russian agent is being a Nazi.' Whats worse, the terrible logic of such an argument or the great irony that for most of the history of the last 100 years branding their domestic political enemies as traitorous 'Bolsheviks'was *the* go to smear of the conservative movement?

To bring a small bit of reality to this discussion: Paul Manafort was notorious for his efforts on behalf of anti-democratic, kleptocrat Russian puppets in Ukraine. He was being investigated because of this far before there was such a thing as a Trump presidential bid. When Trump named such a person as the *chair of his campaign* in the wake of an illegal Russian interference against one of our big two parties, he invited any good, faithful American who puts their country and its independence over something like petty partisan or ideological preferences to look into whether something was going on there. The flailing and hyperbolic nonsense that has followed about that by conservatives should draw their ability to prize loyalty to their country over momentary partisan gain into question.

# posted by

Mista Whiskas : 9:52 PM

Oh, I don't think there's any question about it.

# posted by

Mark Field : 10:16 PM

No kewpie doll for guessing who said this on another blog:

"Manafort is a typical D.C. player; If you subjected half of the people working at his level in Washington to the same level of scrutiny, you could put them away for life. But he's not in Hillary's league."

# posted by

Joe : 10:20 PM

I have made a slightly different point. If the president has the right to pardon himself, that makes the need for immunity from federal prosecution weaker. Conversely, if he lacks the power of self-pardon, that strengthens the case for temporary immunity because otherwise he would be the only criminal defendant ineligible for a pardon.

# posted by

mls : 12:21 AM

Jack Balkin, our host at this Blog has a current post on legal scholar citation ists that concludes with this:

***

There are, however, some amusing effects of using the correct citation counts.

First, updating this list of most cited originalist scholars courtesy of Michael Ramsey, I am now the most cited originalist in the American legal academy.

Second, among the top five most cited originalist scholars in the American legal academy, (me, Akhil Amar, Michael McConnell, Randy Barnett, and Lawrence Solum) three are liberals and one is a libertarian. Only one is a political conservative.

What this means for originalism I leave to the reader to figure out.

***

On this thread in an earlier comment I pre-emotively and amusingly (I thought) referenced Michael Ramsey's list available at the Originalism Blog. Jack's post doesn't accommodate comments (and I'm not suggesting he change his policy as that might result in SPAM and Brett becoming full-time trolls at this Blog), but is Jack suggesting in his penultimate (still my favorite word) paragraph that Larry Solum is the third liberal?

# posted by

Shag from Brookline : 8:41 AM

"Conversely, if he lacks the power of self-pardon, that strengthens the case for temporary immunity because otherwise he would be the only criminal defendant ineligible for a pardon."

He'd only be ineligible for a pardon until he leaves office. In most cases, that's likely to be simultaneous with a conviction.

# posted by

Mark Field : 8:50 AM

I'd like to ask what may be a silly question...

I guess I can see some idea why a sitting president can't be indicted/charged with a federal crime (it's the executive prosecuting itself, though I think we really need to think of an executive apparatus that in many ways has real independence from politics [a 'deep state horror' no doubt!]).

But can a sitting president be charged/indicted on a state charge? If not, why? If Trump literally shot someone in Times Square as he joked about, could he be charged in NY courts, and if not, why? Must he be impeached first?

# posted by

Mista Whiskas : 9:31 AM

Mr. W:

Here is a good Clinton impeachment era legal symposium adressing the question: Can We Indict a Sitting President?

# posted by

Bart DePalma : 9:49 AM

There's no actual answer to your question MW. Legal authorities are divided, but the majority view, I think, is that he cannot. Here's an outline of the main arguments:

1. The structural argument. This argument says that the inclusion of the impeachment clause means that the Framers understood that criminal prosecutions, whether state or federal, were unavailable against a sitting president.

2. The textual argument. The impeachment clause reads (emphasis added): "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." The argument is that the language in bold implicitly requires that removal from office precede criminal prosecution.

3. The policy argument. I'll limit this to state prosecutions. The argument here is somewhat similar to Marshall's argument in McCulloch, namely that states can't interfere with federal policy. Individual states, or even local state attorneys, could effectively shut down a presidency based on partisan charges.

My personal view is that federal prosecutions are permitted, and state prosecutions might be under significant safeguards, but I think I'm in a minority.

# posted by

Mark Field : 10:03 AM

Mark's first and second arguments against criminal indictment of a serving POTUS are essentially the same textual argument and the strongest of the lot.

Whether or not this is wise policy is irrelevant to what the law actually states.

# posted by

Bart DePalma : 10:26 AM

I'm with Mark Field though realistically it is only going to possibly happen in extreme cases (so "in most cases" in regard to the immunity point is sorta of not applicable). It might be like impeachment itself. It nearly never happens, even for judges, but the possibility of it happening, including the early stages, have some effect.

As to immunity, note that once the person resigns, the president (or Trump) can be pardoned. One of the burdens of the office might be that such an extreme scenario arises that results in you being convicted and want to be pardoned, you will have to resign.

Anyway, judges have been convicted, and even the vice president is broadly seen as liable to conviction (see Spiro Agnew; Burr also was liable to state prosecution) even though they are the president of the Senate so the Impeachment Clause alone can't be the barrier.

The separation of powers argument might be stronger, including the concern some rogue local state prosecutor will be involved. But, realistically (and this factors into constitutional questions) the power of the presidency (including being able to avoid capture) is a balance there. And, if there is an argument against state prosecution, it will be a special case where a crime won't have a federal hook. I figure shooting someone on Fifth Avenue probably violates a federal crime is some fashion (see, e.g., the Boston Marathon bombing).

# posted by

Joe : 10:48 AM

Joe's:

" I figure shooting someone on Fifth Avenue probably violates a federal crime is some fashion (see, e.g., the Boston Marathon bombing)."

suggests that such an act by Trump might constitute him as a terrorist under federal law.

# posted by

Shag from Brookline : 11:29 AM