I. Above The Law?
In this series we have been analyzing and discussing the cultural phenomenon that is called "immunity" (Follow The Immunity, 2, 3, 4).
The street description for "immunity" is "being above the law."
Actually, however, in some instances immunity is the law:
"The Senators and Representatives ... 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 ...."(U.S. Constitution, Article I, Section 6, Clause 1). There are valid reasons for that, such as the potential for one political party being able to cause or instigate the arrest of a number of members from the opposing political party (which could or would keep them from being able to show up and vote on an issue that is very close in the vote tally).
II. Is The President Above The Law?
If Department of Justice (DOJ) regulations are "the law" then we can say that there are times when the U.S. President is above the law, or that the President is immune from felony indictment while in office:
"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. We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution."(DOJ Regs, PDF). Both "opinions" indicate that it is DOJ policy, now, that the president is above the law in terms of a criminal indictment while he or she is still in office.
The U.S. President's lawyer, Rudolf Guliani, says that he was informed by Robert Mueller, the "special counsel" (who heads up a team that is investigating Russian tampering with the outcome of the most recent election), that pursuant to DOJ regulations the DOJ cannot indict the president while the president is in office (CNN, NYT, NBC).
III. Immunity For The Wee People?
In a recent federal court decision, the federal judge pointed out that this is not the case for "regular" (Wee The People, 2, 3) citizens:
"Defendant Manafort has moved to dismiss the Superseding Indictment. He contends that when the Acting Attorney General issued the Appointment Order, he exceeded limits imposed on his appointment authority by the Department of Justice Special Counsel Regulations, and that therefore, the Appointment Order, and the acts undertaken by the Special Counsel under its auspices, are invalid. Manafort also argues that even if the appointment was valid, the Special Counsel overstepped the authority he was granted when he investigated and prosecuted the particular charges in this case.(US v Manafort, Opinion & Order). The DOJ and Special Counsel have broad powers of investigation over the wee people:
It is important to note that Manafort does not challenge the entire Appointment Order; he objects only to paragraph (b)(ii), the grant of authority to pursue “any matters that arose or may arise directly from the investigation,” which he claims is too broad.
Thus, as Manafort acknowledges, his motion does not support the dismissal of any charges if they were properly brought under paragraphs (b)(i) or (iii) of the Appointment Order. See Tr. of Apr. 19, 2018 Mot.Hr’g [Dkt. # 281] (“Tr.”) at 8–9.
The motion to dismiss [the indictment] will be denied for a number of reasons. [Order at p. 2]
"Defendant does not argue in his pleadings that the Acting Attorney General violated any statute when he defined the Special Counsel’s jurisdiction to include “any matters that arose;” his claim is that paragraph (b)(ii) of the Appointment Order is inconsistent with the Department’s Special Counsel Regulations. But those internal agency regulations do not create rights that an individual under investigation may enforce in court." [Order, p 13]
"The word “collusion” does not even appear in the Appointment Order, and the Special Counsel was tasked with taking over the existing investigation, “including” “any links and/or coordination.” [Order at pp. 14-15]
"28 C.F.R. §600.7(d) (providing that a Special Counsel “may be disciplined or removed from office only by the personal action of the Attorney General”)."(ibid, Judge's Order). The judge cites to and quotes several of what the President and the defendants incessantly call "fake news" media (Order p. 17-18).
"Nevertheless, it is intended that ultimate responsibility for the matter and how it is handled will continue to rest with the Attorney General (or the Acting Attorney General if the Attorney General is personally recused in the matter)" ... (Final Rule, 64 Federal Register at 37,038)
It would seem that a lot of the ancient "the King can do no wrong" ideology survived the trip across the ocean to the Colonies from The British Empire (Sovereign Immunity Source: Toxins of Power?).
IV. The Only Remedy
What, then, is the remedy available to wee the people when a president runs amok (Arrested Development: The Creep State)?
If the DOJ opinion holds up, the only remedy available to wee the people when a president runs amok is Impeachment:
"At the federal level, the impeachment process is a two-step procedure. The House of Representatives must first pass, by a simple majority of those present and voting, articles of impeachment, which constitute the formal allegation or allegations. Upon passage, the defendant has been "impeached". Next, the Senate tries the accused. In the case of the impeachment of a president, the Chief Justice of the United States presides over the proceedings. For the impeachment of any other official, the Constitution is silent on who shall preside, suggesting that this role falls to the Senate's usual presiding officer, the President of the Senate who is also the Vice President of the United States.(Wikipedia, Impeachment Process). Thus, wee the people are at the mercy of the politicians who are at the mercy of the voting public.
In theory at least, as President of the Senate, the Vice President of the United States could preside over the impeachment of him/herself, although legal theories suggest that allowing a defendant to be the judge in his own case would be a blatant conflict of interest. If the Vice President did not preside over an impeachment (of anyone besides the President), the duties would fall to the President pro tempore of the Senate.
To convict an accused, "the concurrence of two thirds of the members present" is required. Conviction removes the defendant from office. Following conviction, the Senate may vote to further punish the individual by barring him or her from holding future federal office, elected or appointed. Conviction by the Senate does not bar criminal prosecution. Even after an accused has left office, it is possible to disqualify the person from future office or from certain emoluments of his prior office (such as a pension). If there is no charge for which a two-thirds majority of the senators present vote "guilty", the defendant is acquitted and no punishment is imposed."
Unless there is some challenge in the federal courts, and unless the federal courts, the Supreme Court being the final arbiter, overrules the current DOJ opinion, that opinion will have the force of law for the foreseeable future.
Which means "impeachment is off the table" (a bi-partisan view in the House of Representatives) (Pelosi: Impeaching Trump 'not someplace that I think we should go').
That, even though it is a constitutional command and the duty of the U.S. Congress to remove deviant office holders: "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors" (Presidential Impeachment).
Yet, "The involuntary removal of a sitting President of the United States has never occurred in our history" (ibid).
So, the opinion of a few trumps the constitution it would seem.
The next post in this series is here, the previous post in this series is here.