Author Topic: Trump Lawyer Argues President Can't Be Prosecuted for Murder While in Office  (Read 13859 times)

Wayward Son

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Seriously.

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Trump is fighting the subpoena on the grounds that as president, he has absolute immunity from criminal indictment or investigation. His attorney said that would block Trump from being arrested and charged even if he followed through on his campaign trail claim: “I could stand in the middle of Fifth Avenue and shoot somebody and wouldn’t lose any voters, okay?”

Attorney William Consovoy argued that New York authorities would have to wait until the president was out of office to arrest and charge him for that crime. The DA's office argued the claim was a fabrication.

“Once a president is removed from office, any local authority” could prosecute him, Consovoy told a panel of three judges from the U.S. Second Circuit Court of Appeals. “This is not a permanent immunity.”

Judge Denny Chin pressed him on how the crime would be handled while Trump remained in office. “Nothing could be done, that’s your position?” he said.

“That is correct,” Consovoy replied.

It just shows how bad things have gotten that a lawyer could seriously present such an argument in court.  ::)

Seriati

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Why do you think that's controversial?

Would you think it controversial if an ambassador shot someone and asserted diplomatic immunity?  It's just a reality and a fact that unless their own country waived the immunity, our recourse would be to remove them from the country.

In the President's case, he'd certainly be impeached and removed from office, and nothing would bar the murder proceeding from continuing thereafter.  In the odd circumstance that he was not impeached, or was not removed from office, then he'd still be subject to prosecution at the end of his term.  No statute of limitations for murder.

D.W.

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The most controversial part of the whole hypothetical is WTF secret service was up to while this event went down?

Wayward Son

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No, I didn't think it was controversial at all.  I thought everyone knew it stinks;)

My god, man, do you really believe the Founding Fathers intended to give the Presidency unlimited power to break the law, so long as Congress goes along with it?  ???  That he can literally ignore every and any law, and as long as he isn't removed from office, no one can touch him?  That he is literally above the law for his time in office?

Remember, it isn't just for 8 years.  That's a very recent addition to the Constitution.  It could have been for life, as with FDR.

Do you really believe the Presidency was meant as a "Get Out of Jail Free" card?

Seriati

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No Wayward, I think they were quite clear in what they believed.  They believed, correctly I think, that no Congress would tolerate that circumstance.  It's a nonsense hypothetical, put forward by a judge as a question specifically to make for the quotable moment.

D.W.

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It was the flip side they were worried about.  Frivolous lawsuits bombarding a president with demands for appearance (and his attention) such that he couldn't actually do his job.

This is just the law of unintended consequences.  They did give the protection a safety feature though.  (they were damn good at those)

This "feature" however is what is freaking the President out right now.  He is looking at it as if it was a trial.  Not to downplay the seriousness of impeachment, but one reason it exists, is to remove that protection.  (so there could be a trial)

Wayward Son

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No Wayward, I think they were quite clear in what they believed.  They believed, correctly I think, that no Congress would tolerate that circumstance.  It's a nonsense hypothetical, put forward by a judge as a question specifically to make for the quotable moment.

But consider the principle.  He's above the law unless Congress removes him from office...

What if, instead of killing a man on 5th Avenue, he shoots most of Congress.  Who would have authority to remove him from office?

The replacement Congressmen?  He suspends elections.  Sure, it's illegal, but who's going to stop him?  He's above the law, not like us peasants.  He can do whatever he likes if Congress doesn't stop him.  And if there is no longer a Congress, there is no legal way to remove him...

This is not a principle of a Nation of Laws.  This is the principle of an autocracy.  This is the principle of a king, a dictator, a strong man.  Is this really what you want our nation to become?  Do you really want the Presidency to be beholden to no law, only to Congress?  And if a slim majority of the Senate decides they don't care what he does, then he is legally above the law?

So 51 individuals can decide that laws in this country don't matter, and there is no legal way to stop them.  Is that what you think America is all about?  ???

Fenring

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No Wayward, I think they were quite clear in what they believed.  They believed, correctly I think, that no Congress would tolerate that circumstance.  It's a nonsense hypothetical, put forward by a judge as a question specifically to make for the quotable moment.

But consider the principle.  He's above the law unless Congress removes him from office...

No, that's not what Seriati is saying. Do you really think it is? I'm not sure if you realize that what you're really arguing that the law as it stands is a Republican conspiracy to make Trump a king. What Seriati is saying is that the law is what it is. You can say you don't like it, but when the law is explained and your answer is "then the Republicans don't care about laws!" you have gone off the rails. I fully agree that many laws should be changed. Maybe this is one of them. But blaming Trump (and his team I suppose) of correctly stating what the law implies is ridiculous, unless you actually think the law *shouldn't* apply if you don't like its implications.


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This is not a principle of a Nation of Laws.  This is the principle of an autocracy.  This is the principle of a king, a dictator, a strong man.  Is this really what you want our nation to become?  Do you really want the Presidency to be beholden to no law, only to Congress?  And if a slim majority of the Senate decides they don't care what he does, then he is legally above the law?

There is no "principle" involved. There is only a correct (or incorrect) interpretation of what the law is at present. The principle comes into it when you argue that the law should be changed. If Trump is correct that he could not be tried for murder as President, you might want to revisit the law behind that, but it categorically does not mean he's an autocrat who's above the law. On the contrary, that is the rule of law in action. Sometimes law is bad, sure, so fight for it to be changed. In this case Seriati's argument is that its function isn't to prevent punishment for crime and that there are ways to achieve that, such as impeachment followed by trial. Your insane case of "but what if he murders all of the Congress first" can only be answered with a shrug. I'm sure the law also has a contingency for that, and PS - the military and FBI no doubt have contingencies in place for much more extreme cases than that prepped and ready to go.

LetterRip

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What Seriati is saying is that the law is what it is.

It isn't the law though.  It is a DOJ policy - a tradition rather than law.

Fenring

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What Seriati is saying is that the law is what it is.

It isn't the law though.  It is a DOJ policy - a tradition rather than law.

I suppose that may end up being a philosophy of law question, then, if it isn't literally a law on the books. If something has always been a certain policy, then there may be legal ramifications to that fact alone even if it isn't codified. I think the reverse may also apply, where if a law on the books is never enforced, and an officer suddenly out of the blue tries to enforce it on someone 50 years since the last time it was enforced, the "public understanding of what is law" would effectively be changing all of a sudden without announcement, and even though it's on the books it may functionally be wrong for an officer to enforce it out of the blue. Maybe Seriati could correct me on that if I'm wrong, but I would think that 'law' is not simply a matter of what is written down in a book.

LetterRip

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I suppose that may end up being a philosophy of law question, then, if it isn't literally a law on the books. If something has always been a certain policy, then there may be legal ramifications to that fact alone even if it isn't codified.

It hasn't "always been" - it is fairly recent history.  Specifically Nixon's DOJ Office of Legal Council offered the opinion so that Nixon wouldn't be indicted (after getting instruction from Nixon on what the opinion should be).  There was later another memo during the Clinton presidency.

See this discussion that lays out the history of filings, etc.

https://www.lawfareblog.com/indicting-president-not-foreclosed-complex-history
« Last Edit: October 23, 2019, 11:53:25 PM by LetterRip »

Fenring

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I suppose that may end up being a philosophy of law question, then, if it isn't literally a law on the books. If something has always been a certain policy, then there may be legal ramifications to that fact alone even if it isn't codified.

It hasn't "always been" - it is fairly recent history.  Specifically Nixon's DOJ Office of Legal Council offered the opinion so that Nixon wouldn't be indicted (after getting instruction from Nixon on what the opinion should be).  There was later another memo during the Clinton presidency.

See this discussion that lays out the history of filings, etc.

https://www.lawfareblog.com/indicting-president-not-foreclosed-complex-history

I'll plead ignorance on this one. I thought Seriati was saying that this was an established fact, but I may have misunderstood. Sorry WS if I overstepped.

TheDeamon

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My god, man, do you really believe the Founding Fathers intended to give the Presidency unlimited power to break the law, so long as Congress goes along with it?  ???  That he can literally ignore every and any law, and as long as he isn't removed from office, no one can touch him?  That he is literally above the law for his time in office?

Andrew Jackson says hello and thinks you might want to visit the Trail of Tears.

TheDeamon

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No Wayward, I think they were quite clear in what they believed.  They believed, correctly I think, that no Congress would tolerate that circumstance.  It's a nonsense hypothetical, put forward by a judge as a question specifically to make for the quotable moment.

But consider the principle.  He's above the law unless Congress removes him from office...

What if, instead of killing a man on 5th Avenue, he shoots most of Congress.  Who would have authority to remove him from office?

The replacement Congressmen?  He suspends elections.  Sure, it's illegal, but who's going to stop him?  He's above the law, not like us peasants.  He can do whatever he likes if Congress doesn't stop him.  And if there is no longer a Congress, there is no legal way to remove him...

I strongly suspect that if he tried that, somebody who works at the White House would "have an accident" with a most likely fatal outcome for the President. Failing that, some certain other somebody's might suffer "an unfortunate equipment malfunction" which results in the location the President is at being destroyed.

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This is not a principle of a Nation of Laws.  This is the principle of an autocracy.  This is the principle of a king, a dictator, a strong man.  Is this really what you want our nation to become?  Do you really want the Presidency to be beholden to no law, only to Congress?  And if a slim majority of the Senate decides they don't care what he does, then he is legally above the law?

So 51 individuals can decide that laws in this country don't matter, and there is no legal way to stop them.  Is that what you think America is all about?  ???

I think you're worrying about things that should be worried about at all times, but in the case of the current President, such fears are really overblown in nearly every meaningful way. Trump is no Eisenhower, Kennedy, or Obama for that matter.

TheDeamon

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What Seriati is saying is that the law is what it is.

It isn't the law though.  It is a DOJ policy - a tradition rather than law.

I actually believe there are a number of court precedents on the matter as well that exempt the President from most legal proceedings while in office. Mostly in order to protect the sitting President from politically motivated shenanigans. Although in nearly all of those cases, such immunity is linked to things "carried out as part of the duties of the President."

Wayward Son

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I strongly suspect that if he tried that, somebody who works at the White House would "have an accident" with a most likely fatal outcome for the President. Failing that, some certain other somebody's might suffer "an unfortunate equipment malfunction" which results in the location the President is at being destroyed.

So you're advocating murdering the President for something that he can legally do (according to this stupid theory)?  Sounds pretty anarchistic to me... :)

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I think you're worrying about things that should be worried about at all times, but in the case of the current President, such fears are really overblown in nearly every meaningful way. Trump is no Eisenhower, Kennedy, or Obama for that matter.

I know.  He's far, far worse.

You do realize that the court case is not even to charge the President with a crime?  No, it's to investigate a possible crime.  It's to examine Trump's tax returns to look for signs of malfeasance.

So the lawyer is not just arguing that a sitting President is immune from criminal indictment.  He is immune from investigation into possible criminal conduct.  IOW, according to this theory, as long as he is President, anything he did, past or present, is automatically considered legal until the end of his presidency.  He is, by definition, a saint that cannot be touched.  ::)

Could you imagine the Postmaster General making such an argument?  ;D

Trump's lawyer, and by extension, Trump himself, does not understand America.  Government officials are servants of the people, who must follow our laws and are held to a higher standard than most people.  They are not the rulers of our country, who are above us and above the law and can do anything they want with impunity.  This is the ideal that we have all subscribed to and is worth fighting for.

cherrypoptart

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Wayward Son

"What if, instead of killing a man on 5th Avenue, he shoots most of Congress.  Who would have authority to remove him from office?

The replacement Congressmen?  He suspends elections.  Sure, it's illegal, but who's going to stop him?  He's above the law, not like us peasants.  He can do whatever he likes if Congress doesn't stop him.  And if there is no longer a Congress, there is no legal way to remove him..."

The Constitution provides for a scenario like that. In that case the President can be removed in accordance with the provisions of the 2nd Amendment.

NobleHunter

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There is no such provision in the second amendment. Every attempt to act as if there were has been soundly rejected. Not to mention it's utter nonsense. First, there effectively is no militia as stated in the amendment; second, the US Armed Forces would squash a revolt of armed citizens flat. Far more important would be using freedom of speech and the press to convince the militarized police and armed forces not to support the tyrant.

The idea that no one can investigate the President is even more pernicious given the attempts to hurry the House to vote on impeachment without investigating. The GOP position seems to be that no one can investigate the President, that he should be tried without any attempt to gather evidence.

TheDrake

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Wayward Son

"What if, instead of killing a man on 5th Avenue, he shoots most of Congress.  Who would have authority to remove him from office?

The replacement Congressmen?  He suspends elections.  Sure, it's illegal, but who's going to stop him?  He's above the law, not like us peasants.  He can do whatever he likes if Congress doesn't stop him.  And if there is no longer a Congress, there is no legal way to remove him..."

The Constitution provides for a scenario like that. In that case the President can be removed in accordance with the provisions of the 2nd Amendment.

I'm pretty sure that the cabinet would remove him, or did we want to extend the scenario to even more ludicrous extent? Like he nukes DC?

Wayward Son

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The Constitution provides for a scenario like that. In that case the President can be removed in accordance with the provisions of the 2nd Amendment.

Gods, you guys are a bloody-minded lot.

First you advocate a ridiculously bad legal theory--making the President not subject to American laws, even murder.

Then you advocate murder to solve the problems that you made.  ::)

Why do you even bother with laws?

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I'm pretty sure that the cabinet would remove him, or did we want to extend the scenario to even more ludicrous extent? Like he nukes DC?

The President's lawyers are arguing that he has carte blanche to ignore any laws.  That no one but Congress can charge him with anything.  Heck, he's arguing that no one can even investigate any criminal activity he has ever done.  With something this ludicrous, what scenario is even more ludicrous? ;)

And if you find that too extreme, how about the more realistic scenario where a slim majority of the Senate refuses to consider the possibility of criminal activity by the President.  So 50 senators and the Vice President can overrule any charge against him while he is in office, even murder.  And no one but the House can even investigate whether he murdered someone or not.  (And it seems that even having the House investigate is up in the air.)  Does the opinion of 50 senators and the VP really overrule our entire criminal justice system for the President?  Is he really that much above us all?  Is that what Republicans really think these days?  :'(
« Last Edit: October 24, 2019, 11:49:07 AM by Wayward Son »

TheDrake

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I don't buy a scenario that has 34 senators signing off on the murder president.

I don't support the idea that no one can investigate, but you're propositions imply that guilt is so obvious that no investigation is needed.

Should the justice department have been able to depose Clinton against his will? We've never done it that way. Clinton agreed voluntarily.

There are other ways the president is historically above the law, including the use of executive privileges.

I'm far more bothered by the number of people who are not the president just refusing to show up when they are subpoenaed.

D.W.

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second, the US Armed Forces would squash a revolt of armed citizens flat.
Bull.  You would be lucky to hang onto half of them.  The internal strife would be truly stunning before we even had to consider armed civilians.  And THAT assumes the secret service are all in lock step with the President's... coup?  No, umm... consoildation of power!

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Gods, you guys are a bloody-minded lot.
Political Action Thrillers are interesting thought experiments.  At least for this bloody-minded poster.  :P

cherrypoptart

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I wrote this out but didn't post it but what they hey decided to post it anyway. This is always fun to think about. The Last Ship touched on it a little bit, sort of. 24 too.

I humbly beg to differ (that civilians couldn't take out a rogue government). If Trump pulled some sort of Palpatine and literally went to Congress and shot the senators dead on live TV and he tried to stay in power that is exactly what the 2nd Amendment is for. The militia is the common citizenry. Hopefully some elements of the military would side with the citizens. Even if not, the math is not on the side of the military. There are about 2 million active duty military and reserves. However many fighting age civilians there are in America, there are enough guns for each of them with millions left over. Ha, you're about to get me started. Sigh... we've been over this before though and it's always fun to speculate but of course there are too many variables to say exactly how it would go. But our armed civilians wouldn't be lining up on a battlefield to fight our military Civil War style. It would be guerilla tactics aka terrorism and we've seen how ineffective our military can be against asymmetrical warfare, and that's against 3rd world countries. If you take into account the ingenuity and resourcefulness of the American people I definitely wouldn't want to be against them in an all out Civil War. We would see things, as far as creative attacks against our government, that we can't even imagine yet. Saw a little of it in Olympus Has Fallen with the drone attack. Things like that would just be a small taste of it. We think about guns in civilian hands but drones would probably be even more dangerous.

------------------------------------

Agree with DW that the squashing wouldn't be happening because the civilians wouldn't play fair.

NobleHunter

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You said second amendment provisions. If anyone tried to use the guns they have access to because of the second amendment rulings against the US Army, they'd die.

Though I'd like to see people argue the second amendment guarantees access to IEDs.

cherrypoptart

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Well the Second Amendment does say arms and not guns. If you have guns presumably you have bullets and if you have bullets you have explosives that can be used to make IEDs or drone weapons. I'm also thinking about cyber attacks and then you have our infrastructure that is vulnerable not to mention simple forest fires. The only thing that keeps our society functioning as well as it does is that there are only a relative handful of people who want to cause trouble. If that number gets into the millions the trouble they could cause would quickly bring our civilization to its knees.

TheDeamon

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I strongly suspect that if he tried that, somebody who works at the White House would "have an accident" with a most likely fatal outcome for the President. Failing that, some certain other somebody's might suffer "an unfortunate equipment malfunction" which results in the location the President is at being destroyed.

So you're advocating murdering the President for something that he can legally do (according to this stupid theory)?  Sounds pretty anarchistic to me... :)

The anarchistic act was the President killing off Congress. The "anarchist" killing such a president is pursuing the quickest/easiest solution to the problem the President had created by carrying out such an act. Just because the president may have limited immunity under the law (I agree it isn't unconditional) doesn't mean other avenues of pursuit are unavailable. Impeachment would be the primary lever, if the president eliminated congress to prevent that option, then we're dealing with a tyrant, and as the founding father's outlined, armed revolt is an acceptable recourse at that point. So killing the President is entirely "within reason" at that point, even if it isn't illegal.

It would interesting to see what would happen in the aftermath of such a scenario. Placing odds on a pardon or a jury refusing to convict the president's killer?

Seriati

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I'll plead ignorance on this one. I thought Seriati was saying that this was an established fact, but I may have misunderstood. Sorry WS if I overstepped.

I said that diplomatic immunity was an established fact, but it was unclear.  In this case LR's kind of elevating the wrong point.  The DOJ opinions trail significantly the principal of Presidential immunity, and are not the "source" of it as he seems to imply.  Effectively, it's not "just a DOJ" opinion but rather a long historical understanding that goes all the way back to the founders.

Here's a really easy to read write-up from 1997, that seems to come from one of the Yale law reviews.  https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1897&context=fss_papers  They pretty much acknowledge that the issue is still subject to debate, as are all matters under US law, until they get to the SC - and sometimes even after.  But they also walk through a good bit of the history and the literal deference of the courts to the principals that require it. 

The DOJ opinions are Johnny come lately's that really just transcribe the basic (and pre-existing) position.  The President is the head of the executive branch with the authority to control all prosecutions, ergo he can decide not to prosecute himself.  As for state's the court's decided way back in time, that federal officials, in part, and the President, virtually in total, can't be prosecuted as it would by necessity disrupt the executive power (which is by definition exercised on behalf of ALL the people).  Effectively, allowing such a prosecution would grant one judge and one prosecutor (really, any not "one") the power to derail the authority of all 350 million Americans.

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No Wayward, I think they were quite clear in what they believed.  They believed, correctly I think, that no Congress would tolerate that circumstance.  It's a nonsense hypothetical, put forward by a judge as a question specifically to make for the quotable moment.

But consider the principle.  He's above the law unless Congress removes him from office...

That's not remotely the principle.  The principle is that the President's job under the Constitution is more important than prosecuting a criminal case at that point in time.  I mean honestly, we're not talking about murder, we're, for example, talking about a NYC prosecutor that wants to bring criminal charges related to Stormy Daniels, primarily for the purpose of obtaining Trump's tax returns.  There's nothing about that - not one bit of it - that should not be delayed until he's out of office.

I'd also note, you may remove him through an election.  Impeach is another option.  So is removal by Cabinet officials.

No President is immune from the law, only granted a delay in prosecution.  Seriously, there's only 2 kinds of suits here, those that are being brought solely for political purposes - which are the exact kind that should be delayed (they will most likely never be brought), and those that are not.  If they are not serious and not political they too should be delayed.  If they are serious and not political its up to Congress to act.

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What if, instead of killing a man on 5th Avenue, he shoots most of Congress.  Who would have authority to remove him from office?

And what if he declared martial law and murdered every prosecutor and judge!  Oh my!  What legal recourse would we have.

This may be the stupidest hypothetical I've ever been called to entertain.  Assuming we still have a government, he'd be removed as illegitimate within hours.  Assuming we don't its up to the revolution.

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He's above the law, not like us peasants.

That isn't even truthful hyperbole.  I agree if you posit that Trump has accomplished an armed overthrow of the government, we're out of luck for using the exiting legal mechanics of that overthrown government to hold him accountable.  Which is again one of the most ridiculous things I've ever had to write.

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This is not a principle of a Nation of Laws.

I agree, armed overthrow of the government is not a principal of a Nation of laws.  Lol.

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Is this really what you want our nation to become?

You got me, I'm secretly pining away for the violent overturning of our government.  And your right, if only I agreed to break the federal system, we could somehow "legally" do something about Trump after he's violently overthrown the government.

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Do you really want the Presidency to be beholden to no law, only to Congress?

It's not the case that the President is beholden to no law.

And yes, I do want Congress to be the gatekeeper over every single actiivist prosecutor in the entire country, who finds and activist judge being able to arrest and jail a sitting US President for any pretextual violation of law they can come up.  We're already the point where it's "illegal" to call someone an illegal immigrant in NYC, I'm sure that we'll be so much better off if we empower tens of thousands of people that only have to appeal to tiny voting blocks to disrupt the function of the federal government.

Of course, we both know that if an Alabama prosecutor tries to put a Democratic President in jail for violating an Alabama law on abortion, you're not going to take a consistent position.


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And if a slim majority of the Senate decides they don't care what he does, then he is legally above the law?

If the Senate doesn't remove him for a specific event, then he continues in office until he is voted out.  I note the courts do believe they have the authority to enjoin future and continuing events, so even in your hypo, this doesn't actually play out.

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So 51 individuals can decide that laws in this country don't matter, and there is no legal way to stop them.  Is that what you think America is all about?  ???

It takes 67 to remove in the Senate, so I guess your number would be "34" not 51.  Lol.  The legal way to stop them is an election.  But it would be more appropriate in the circumstances you list out to perform the action known as a "revolution."

Wayward Son

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Here's a really easy to read write-up from 1997, that seems to come from one of the Yale law reviews.  https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1897&context=fss_papers  They pretty much acknowledge that the issue is still subject to debate, as are all matters under US law, until they get to the SC - and sometimes even after.  But they also walk through a good bit of the history and the literal deference of the courts to the principals that require it.

That is an interesting argument for temporary immunity.  A few questions, though:

1.  Would this argument also apply to civil prosecution?  Wouldn't that also take the President's time away from his job?  (In fact, wasn't 1997 about the time Clinton was being sued?  ???)

2.  What about the situation where (as you corrected me) 31 Senators decide that no crime, past or current, is worth removing the President from office.  Would this not have the effect of putting the President above the law while he is in office?

3.  What does this argument have to do with investigating a sitting President, which is what the court case is about?  Doesn't it mean that a President could get away with a crime if the statute of limitations runs out before he leaves office?  And wouldn't delaying any investigation also delay justice if he was guilty?

4.  Does this apply, at all, to Congressional investigations?  Or would the time the President had to take to respond to House inquiries also be an unreasonable burden on the Presidency?

5.  What if the prosecutors promised to limit the amount of time the President personally had to take to respond to prosecution to, let's say, 10 hours a week?  Wouldn't that cover any unreasonable burden on his time, and allow him to run the country?  Perhaps we can't arrest and jail him until he leaves office, but the sentence could commence the day he does. :)

LetterRip

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Seriati, it is actually 2/3rds of a quorum required to impeach.

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In theory, a vote to convict the President (or anyone else) would count as legal with as few as 34 members, not 67, assuming the absolute minimum (51) participated.

https://www.washingtonian.com/2019/10/10/the-impeachment-loophole-no-ones-talking-about/

Any Republican Senators who wanted him Impeached, but didn't want to actually vote to do so - could simply disappear the day of the vote.

Pete at Home

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I think that Clinton v. Jones demonstrates that SCOTUS was dead wrong when they unanimously ruled that a sitting president could litigate personal issues in court while running the country. 

Jones laid the stage for Monica, creating the forum where the president perjured himself.  (This was pernicious not because the president perjured but because the president at the time was a card holding attorney).

Monica created the wag the dog scenario where the president started a war with Serbia to distract from an affair.

Because of our aggression in Serbia,
=> Yeltzin was forced from power
=> Putin rose to power.
=> the cold war rebooted.

Learn from history.  Use the impeachment process before dragging the president through the courts.

Wayward Son

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Thinking about it some more, I think that Yale Review article is based on a questionable premise: that the President is unique and irreplaceable.

The main argument is that all the power of the Executive Branch rests with the President, and since he alone was elected, giving the power to someone else would be taking power away from the American people.  But the President was not elected alone; he was on a ticket, which included the Vice President.  The voters elected both of them, not just the President.  So giving the Presidency to the Vice President would still be following the will of the people.

Not having the elected representative is not a disaster, either.  If so, then the removal of every senator and representative would be a similar "disaster" for the states and districts they represent.  But the article dismisses such worries by pointing out that they have only limited power and influence in Congress.  Which may be true for Congress as a whole, but not for the districts they represent.

I also think they overstate the power of the Presidency.  Yes, all of the responsibility of the Executive Branch rests with the President.  But it is not executed exclusively by him.  He has a huge staff, the heads appointed by him, to run the day-to-day business and to make most of the decisions.  These people would not go away if the President was arrested.  So it's not like the Executive Branch would suddenly not be there if the President was removed.

And remember, the Founding Fathers considered the Presidency to be a lesser branch than Congress.  How big is the disaster if a lessor functionary is removed for criminal behavior?

This is not to say that I think the President should be open to every little indictment that comes along.  He is still the President, and has enormous responsibilities.  But major indictments should not be dismissed because he is irreplaceable.  And certainly not investigations into wrong doing.  In our government, every member is replaceable, because no single individual or institution has absolute power.  It is all shared, if only to prevent the rise of a tyrant. This includes the President.

Wayward Son

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Learn from history.  Use the impeachment process before dragging the president through the courts.

As you will see, impeachment does not mean the President won't wag the dog, either. :(

Fenring

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WS, it seems like you're bending overbackward to try to define for yourself how you can explain your already present decision that Trump should be open to criminal investigation. You really don't think the commander in chief of the armed services is a critical part of government? And you really think that "Not having the elected representative is not a disaster, either." which to me sounds like a usurpation of democracy? The VP is a fallback, true, but he is not *the person* elected to be President, and should not be considered to be an acceptable stand-in should the President be weighed down by criminal indictments. I don't think any of these arguments would be made if it wasn't Trump, I have to be honest.

By the way I'd jump on board with agreeing with you if the point had more broadly been to hunt down and eliminate corruption in government and to excise the potential for abuses and criminality. I would love it if anyone involved in sex slave trafficking was busted, if everyone accepting bribes was busted, if everyone (in politics or business) that knowingly lies to the public and harms them (like big tobacco) was busted, and so forth. But I'm wary to the extreme of the argument as you're framing it because it feels like it's just about 'let's get Trump.' He is *so* not the biggest or worst source of corruption in the U.S. government, assuming he is in fact one at all.

TheDrake

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Don't we also need to think about the incentives that a foreign power could have if they could influence an investigation into a sitting president, and if such a thing were made easier? During the months it would take to replace the President, it weakens and distracts the President. This reduces our influence in world affairs.

Clinton didn't really need an incentive to intervene in Bosnia. He intervened in Somalia without any such scandal. He advocated intervention in Bosnia before he was ever elected.

Wayward Son

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I don't think any of these arguments would be made if it wasn't Trump, I have to be honest.

You're probably right, Fenring, but for the wrong reason.

No one but Trump has bent the rule so far as to require us to define when the President should be indicted or not.  We have never elected an out-and-out crook to the White House in recent memory.  One that would fight to keep his job in order to hide his crimes behind the office of the Presidency.  Even Tricky Dicky resigned rather than fight to the end.

Consider the recent report of Trump using two different evaluations of his properties in the past--one for asking for loans, and a lower one for paying taxes.  These were verified from public records.  He committed either financial fraud or tax fraud.  But now his lawyers are saying that he can't be prosecuted because he's President?  That's he gets off scot free because he was elected and because the Senators in his party don't want to rock the boat?  That no one can even look into this now because he's President?

His job is important, but not so much that we have to tolerate a criminal in the job.  Because if his job is so important and so powerful, what would stop him from using his position to prevent him from being punished?  Do you want someone who has no respect for the law to be in charge of the Department of Justice?

Sorry, I don't have enough faith that no more than 32 Senators will always do the right thing and remove a criminal President, especially in this divided age when people will turn a blind eye to the imperfections of "their" candidate.  I don't think our Founding Fathers had such faith, either.  Trump is putting that to the test.


TheDrake

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Sorry, I don't have enough faith that no more than 32 Senators will always do the right thing and remove a criminal President, especially in this divided age when people will turn a blind eye to the imperfections of "their" candidate.  I don't think our Founding Fathers had such faith, either.  Trump is putting that to the test.

How much faith do you have that zero prosecutors will ever do the wrong thing? Then you'd have to weigh the consequences. A hypothetical fraud President might have impacted thousands of people. Meanwhile, the consequences of allowing DA investigations could damage millions.

Imagine if FDR could have had any prosecutor in the country go after him.

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World War II was in full swing in 1943 and Truman was chairing a Senate committee on possible war profiteering committed by American defense plants. In the process of investigating war-production expenditures, Truman stumbled upon a suspicious plant in the state of Washington and asked the plant managers to testify in front of the committee. Unbeknownst to Truman, this particular plant was secretly connected with a program to develop an atomic bomb—”the Manhattan Project.” When Stimson, one of a handful of people who knew about the highly classified Manhattan Project, heard about Truman’s line of questioning, he immediately acted to prevent the Missouri senator from blowing the biggest military secret in world history.

On June 17, Truman received a phone call from Stimson, who told him that the Pasco plant was “part of a very important secret development.” Fortunately, Stimson did not need to explain further: Truman, a veteran and a patriot, understood immediately that he was treading on dangerous ground. Before Stimson could continue, Truman assured the secretary “you won t have to say another word to me. Whenever you say that [something is highly secret] to me that’s all I want to hear. If [the plant] is for a specific purpose and you think it’s all right, that’s all I need to know.” Stimson replied that the purpose was not only secret, but “unique.”

Imagine it is not Truman, but a state AG. Is the AG going to trust the SecDef enough to just drop an inquiry? This isn't a direct analogy, but just demonstrates the kind of potential risk posed.

If somebody needs to look into the president, that is the job of the House. If somebody needs to remove the president, that is the job of the Senate. If the president needs to be set aside quickly, that is the job of the cabinet.

LetterRip

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How much faith do you have that zero prosecutors will ever do the wrong thing? Then you'd have to weigh the consequences. A hypothetical fraud President might have impacted thousands of people. Meanwhile, the consequences of allowing DA investigations could damage millions.

You'd need a corrupt judge, a corrupt grand jury, and a corrupt police force to conduct a corrupt investigation.  DA's can't make much progress by themselves.  With randomly assigned judges and jury members it is extremely difficult, even if the DA is corrupt.  Most DA's also have oversight - and thus even if they are corrupt they also have to have a corrupt superior.

The big risk of DA corruption is deliberately screwing up a case or negotiating a corrupt plea deal.  They can also overcharge in existing investigations - which is a risk with for profit prisons.  Pursing false charges though isn't really that feasible.
« Last Edit: October 25, 2019, 06:47:40 PM by LetterRip »

Seriati

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LR, you don't need most of that.  Less than half the states require a grand jury be used at all, the Feds do require it for felonies.  The judge doesn't need to be corrupt, as the premise is that a real crime has been permitted, ergo the judge only needs to believe that Presidential immunity doesn't apply or isn't real.

Even the police may not be necessary to investigate a bunch of statutory crimes.  And if they are not a one of them needs to be corrupt to investigate a crime.

"Oversight" of DAs varies, some of them are effectively supreme in a local area, others may have to report to a state AG.  Courts can sanction them.  But I mean, you could look at the Smollet case to see that the final decision on his charges sat with the Cook County DA, not a state AG or anyone higher.

In any event, nothing about the investigation has to be corrupt.  There's nothing for example about a asserting that its a felony violation of the election laws related to say using your own money to pay Stormy Daniels  to sign an NDA and not declare it as a campaign contribution to yourself and list it publically, that has to be corrupt.  There's certainly a technical and theorehtical argument that it violates a law.  It's no were near what was intended by high crimes and misdemeanors though, which leaves us with the question of what happens if the DA were to assert it and try to jail the President?

If that "works" you really are giving a DA with any conceivably applicable law the ability to disrupt the entire country.  Arguing that Congress should remove a President in that circumstance compounds the error rather than correcting it.

Seriati

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That is an interesting argument for temporary immunity.  A few questions, though:

1.  Would this argument also apply to civil prosecution?  Wouldn't that also take the President's time away from his job?  (In fact, wasn't 1997 about the time Clinton was being sued?  ???)

The court considered that in connection with Clinton's suit, and you are certainly free to disagree with their conclusion.  They confirmed that Clinton was immune to civil suits that arise while he's in office related to his duties, and concluded the trial demands of a civil suit related to prior conduct could easily adjust to his schedule.

It was definitely a purpose driven result.  I honestly, don't recall if I thought he could sued at the time or if I was in favor of deferring.  I think it's clear it did disrupt him in his duties, which is a bad result.  I also think it's certain that multiple suits would provide for complete disruption.

It's interesting though, because, Trump has been involved in dozens of similar suits since he took office but you seem not to notice.  At least six on emoluments, those related to his university and charity, multiple trying to force disclosure of his tax returns.  And oh yeah, a two year secret investigation by a special prosecutor (you should re-read Mueller's self serving conclusions that he wasn't disrupting the President).  I think that he has been disrupted, and that's certainly been part  of the strategy.

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2.  What about the situation where (as you corrected me) 31 Senators decide that no crime, past or current, is worth removing the President from office.  Would this not have the effect of putting the President above the law while he is in office?

I said 34, not 31, which is key as it takes 67 senators (or 2/3's a LR pointed out) to impeach and it's also the threshold number of expelling a Senator.  If even one of that crazy 34 isn't present for a day, the other 66 could act to start expelling the remaining 34. 

Other wise its hard to imagine the situation outside a civil war where a President could be openly criminal and not removed by the Senate.  I mean, I guess you do it with a House majority that refused to impeach as well if we're getting all the crazy out at once.

Now we certainly have evidence that this rule does work for Executive abuse of authority.  Look no further back than President Obama instituting DACA and DAPA with a stroke of his pen and a little over 40 Senators who had his back and refused to hold him to account for the excess.

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3.  What does this argument have to do with investigating a sitting President, which is what the court case is about?

That's Mueller's argument as to why he could investigate.  I still think it breaks.  The biggest problem with the Mueller approach is how one sided it is.  Sure he investigated witnesses and preserved that record, but defense counsel didn't get their chance and it shows in the report.  Effectively, the country has had half a year with a prosecutor's charging document as the only thing in front of it.  It's a garbage situation and unfair, and exactly what the House is replicating right now.

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Doesn't it mean that a President could get away with a crime if the statute of limitations runs out before he leaves office?

That's a better question, and the answer is no.  Civil litigants can file to preserve the statute, and the proceedings be delayed, and prosecutors could do similarly.

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And wouldn't delaying any investigation also delay justice if he was guilty?

Sure.  You might delay a felony election law fine for 2 or 6 years.  That's a reasonable trade, with a specific solution that Congress can follow up on if they want to.

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4.  Does this apply, at all, to Congressional investigations?  Or would the time the President had to take to respond to House inquiries also be an unreasonable burden on the Presidency?

The law review walked through this question, as have the courts.   Congressional oversight is a specific function that the executive branch has to accomodate, in effect that's part of the job not a disruption from the job.  Outside of the impeachment context, the executive branch is easily capable of managing unreasonable demands from Congress. 

And yes it could be unreasonable, but if the House and the Senate - also elected officials - view that as the best use of the countries time, rather than what ever other pressing issue the President would otherwise be dealing with that's a legitimate decision for them to take.

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5.  What if the prosecutors promised to limit the amount of time the President personally had to take to respond to prosecution to, let's say, 10 hours a week?  Wouldn't that cover any unreasonable burden on his time, and allow him to run the country?

Not even remotely would that work.  The judge in the Clinton case was signaling that Clinton would need a few hours stretched across months, there's no way that case goes forward if it involved time every week.

Honestly, this is a literal theft from the entire country.  The President is supposed to be doing our business, not spending more than a working day a week on his own business.  And that's before you even consider that 10 courts hours is probably more than 50 outside court hours.

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Perhaps we can't arrest and jail him until he leaves office, but the sentence could commence the day he does. :)

I can't see any reason to prefer what you suggest.  Completely discounting Congress is ridiculous, but if you were really that paranoid, the States themselves could change the Constitution.

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Thinking about it some more, I think that Yale Review article is based on a questionable premise: that the President is unique and irreplaceable.

That's fundmental to the Constitutional model.  It's not the Yale team that came up with it, it's more like 250 years of history.

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So giving the Presidency to the Vice President would still be following the will of the people.

That's a crazy thing to even say.  Nancy Pelosi was elected too, ergo we can remove Trump and Pence and its still just following the will of the people.  Not remotely. 

We have a Constitutional process for a reason.  What you posit makes the entire Constitution irrelevant.  Any state could pass a law to make something a felony and remove the President in its own discretion.  I mean, a Southern State could have imprisoned Lincoln for property theft. 
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But it is not executed exclusively by him.  He has a huge staff, the heads appointed by him, to run the day-to-day business and to make most of the decisions.

Who cares about who executes it?  The Presidents role is to set the policy and that is not an interchangeable function.  Every President has their own views and goals.

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You're probably right, Fenring, but for the wrong reason.

No one but Trump has bent the rule so far as to require us to define when the President should be indicted or not.  We have never elected an out-and-out crook to the White House in recent memory.  One that would fight to keep his job in order to hide his crimes behind the office of the Presidency.  Even Tricky Dicky resigned rather than fight to the end.

That's such an interesting example.  Nixon directed spying on a campaign, that was less involved and in depth than the spying the Obama admin conducted on the Trump campaign.  Yet, you see Trump and Nixon as the crooks? 

What an exercise in narrative.

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Consider the recent report of Trump using two different evaluations of his properties in the past--one for asking for loans, and a lower one for paying taxes.  These were verified from public records.  He committed either financial fraud or tax fraud.

Actually, all you did is demonstrate you don't know much about accounting or taxes.  Loans require a mark to market valuation (or you're being fraudulent) as the lenders care about the value at which they can sell the asset on default.  Tax records are virtually always as cost (which becomes much smaller than fair market value over time) and require depreciation, which reduces the costs on property even more over time.  The values are not supposed to be the same.

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That's he gets off scot free because he was elected and because the Senators in his party don't want to rock the boat?

Why do you repeat things you know are untrue?  Deferral is not getting off, certainly not scot free.  NOT to mention, that most of what you're talking about involves his companies, which are not immune to prosecution.  Leave him out of it and you can prosecute all you want (or actually, if you ever actually identify a real crime).

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That no one can even look into this now because he's President?

Objectively, thousands of prosecutors, lawyers, the media and Democratic partisans are looking into this now, many have even subpeona'd people in connection therewith.  How is what you are asking not nonsense?

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His job is important, but not so much that we have to tolerate a criminal in the job.  Because if his job is so important and so powerful, what would stop him from using his position to prevent him from being punished?

Again, the answer is Congress would stop him, and we don't have to tolerate a criminal in the job.  Of course, you have to actually have found a crime to make a charge of criminality stick, and you don't have one.  That's why you want to change the rules, getting one judge in one area to push the limits is way easier than getting the House of representatives to take accountability for impeaching someone without any real basis.

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Do you want someone who has no respect for the law to be in charge of the Department of Justice?

I don't, and I'm darn glad we're starting to clear those guys out.

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Sorry, I don't have enough faith that no more than 32 Senators will always do the right thing and remove a criminal President, especially in this divided age when people will turn a blind eye to the imperfections of "their" candidate.  I don't think our Founding Fathers had such faith, either.  Trump is putting that to the test.

You don't have faith that 67 Senators will do the right thing, but you do have faith that not one of tens of thousands of prosecutors will do the wrong thing.  It's a funny world that's presenting itself in your head.

Crunch

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TDS manifests in humorous ways some times.

Wayward Son

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TDS manifests in humorous ways some times.

People with TSS shouldn't comment on people with TDS, Crunch.  :D

TheDrake

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How much faith do you have that zero prosecutors will ever do the wrong thing? Then you'd have to weigh the consequences. A hypothetical fraud President might have impacted thousands of people. Meanwhile, the consequences of allowing DA investigations could damage millions.

You'd need a corrupt judge, a corrupt grand jury, and a corrupt police force to conduct a corrupt investigation.  DA's can't make much progress by themselves.  With randomly assigned judges and jury members it is extremely difficult, even if the DA is corrupt.  Most DA's also have oversight - and thus even if they are corrupt they also have to have a corrupt superior.

The big risk of DA corruption is deliberately screwing up a case or negotiating a corrupt plea deal.  They can also overcharge in existing investigations - which is a risk with for profit prisons.  Pursing false charges though isn't really that feasible.


https://www.google.com/amp/s/www.sfchronicle.com/news/crime/amp/Ex-worker-says-Oklahoma-prosecutor-ordered-14564826.php

Is just that easy to make it look legit while being malicious.

Crunch

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TDS manifests in humorous ways some times.

People with TSS shouldn't comment on people with TDS, Crunch.  :D

Well, let’s walk through this.  Orange man is so bad that you literally fear he will walk down Pennsylvania Avenue, guns in both hands, firing randomly into crowds and nobody could stop him. The bad orange man’s murderous desires, obvious to all, are unstoppable. Bad orange man is above the law. He’ll kill us all and get away with it. That’s the premise here and it’s a childishly absurd one.

Never mind that this type of immunity to prosecution while in office has applied to every president and is absolutely nothing new, it’s only the bad orange man that has you suddenly worried. There is nothing new or different here, nothing that should surprise or frighten normal, reasoning, people. This is a purely emotional thread, based on fear and hate. It’s nothing but “orange man bad” as parroted by NPC’s across the media. It’s a manifestation of TDS to suddenly find something that’s been applicable to every president is now a problem.

D.W.

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Nobody is honestly worried about Trump personally murdering anyone.  Only he, and his attorney have floated that hypothetical.  We DO think about other legal issues though.  But IF we are going to entertain Trump going (more?) mad and starting with the murderin' then... why stop with just one!  The preposterous scenarios are to demonstrate how preposterous Trump and this one guy (if not his team) are being in their "defense" or plea to end oversight (translate that to witch hunts if it's too loaded a term for ya Crunch).

Seriati

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Nobody is honestly worried about Trump personally murdering anyone.

Wayward floated the literal hypothetical, that not only would Trump murder someone, he'd then shoot all the Senators to prevent himself from being impeached.

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Only he, and his attorney have floated that hypothetical.

Unless, I'm mistaken, the attorney was responding to a question by the judge - not pushing a hypo - which itself reflects a good bit of partisan nonsense by the judge.

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We DO think about other legal issues though.  But IF we are going to entertain Trump going (more?) mad and starting with the murderin' then... why stop with just one!  The preposterous scenarios are to demonstrate how preposterous Trump and this one guy (if not his team) are being in their "defense" or plea to end oversight (translate that to witch hunts if it's too loaded a term for ya Crunch).

What oversight?  Congress has plenty of authority to conduct oversight, however, that's not what they've been doing.  Investigation of Trump as a person IS NOT oversight.

DonaldD

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Wayward floated the literal hypothetical, that not only would Trump murder someone...
Is it really your position that WS believes that Trump would murder somebody?  Otherwise, that's a complete non sequitur to D.W.'s point.

Seriati

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How is it a "nonsequitor" to respond that we are in a thread that literally references Trump not being able to be prosecuted for murder while in office when D.W. said no one is worried about it or seriously floated it.

Did I miss the "point" of the thread, or did you?

D.W.

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Apparently you did.  We are not "worried about it", because this is not a thread discussing how best to overthrow the tyrant.  It's not even seriously about war-gaming such a situation.  This is about the legal protections offered to the office and what the extents of them are, and... if the way they are understood is a "correct" interpretation of our system, with a hint of "should it be though?" tossed in for flavor.

Murder, is shorthand for asking if the protection is absolute.  We do this because setting a standard somewhere between "technically a crime but we aren't going to upend the government for THAT" and "what if he just starts a murder spree?" is not useful to discussion.  It's too subjective as our system insures that if you look hard enough everyone in that office would run afoul of SOME law, and that shouldn't get them bounced out of office.  But trying to codify the law and make a line in the sand is something we'd never agree upon.  So... MURDER!

With us now?

Seriati

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But consider the principle.  He's above the law unless Congress removes him from office...

What if, instead of killing a man on 5th Avenue, he shoots most of Congress.  Who would have authority to remove him from office?

Or you could, you know go read my first few responses which were completely reasonable and addressed the actual solution to the less "extremist" version.  You know, impeachment, removal and then indictment.

I really don't know what to say to you guys.  The threads premise, and how Wayward has defended it are clear as day, yet you seem to want to gaslight me on the whole thing.