Constitutional Interpretation: USA Article I, Section 3

deletedmemberMD

In this discussion poll; I will make the argument that by all judicial perspectives of constitutional interpretation, the constitution does in no way grant immunity to a sitting president from criminal indictment.

Whether originalist, modernist, literalist both historical and contemporary or democratic interpretation is applied, the language seems quite clear.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

—Constitution of the United States of America - Article I, Section 3, Paragraphs 6 and 7

Nevertheless: adv [never the lefs] not-withstanding that.

Notwithstanding: conj [This word improperly a participial adjective, as it is compounded of not and withstanding and anfwers exactly to the Latin Non oblfante] 1. Without Hindrance or obstruction from.

Dictionary of the English Language by Samual Johnson 3rd edition 1768

Upon examination of the language used, we see the term “Party convicted shall nevertheless be liable and subject to indictment”. Some defenders of the DOJ opinion have pointed to the past tense use of “convicted”, to mean after impeachment can come indictment. This comes from a complete misunderstanding of the word “Nevertheless” in both the times the document was written, and the usage of the word now being quite remarkably unchanged in modern dictionaries.

To put it simply, Indictment is not hindered or obstructed by impeachment conviction. Impeachment is there for the purposes of removing an official from office, disbarring them from attaining any other office and disallowing them to be pardoned and rescinding access to government funds and trusts.

It is undemocratic to argue that any citizen of the United states would be immune from indictment should they have killed someone and compelling and damning evidence of this exists in the hands of law enforcement and the Judicial branch. This system of checks and balances was designed with three branches of government; Legislative, Judicial and Executive. Should the legislative branch be unable to remove an official of the executive branch, due to bribery, extortion or threats by way of impeachment; then the judiciary would and should be expected and obligated to indict the president. This would force the legislative branch to convict the Executive official due to inability to perform their duties; owing to the fact that they have been found guilty in trial by jury following an indictment.

With the inclusion of the 25th amendment, the issue is even less problematic. Should a sitting president be convicted by trial following due process afforded them by their rights as a US citizen; an impeachment would not be required, as the VP would be obligated to declare the President unfit for office by way of criminality and corruption.

The 25th amendment would be in everyone’s best interests immediately following conviction so as not to deprive the people of the USA of a Commander in chief. If however the Vice-President is complicit in the charges laid against the President; then they too can be indicted while still in office. Which would mean the Speaker of the House would be sworn in as President following the removal of both The President and the Vice President.

If, hypothetically we were to accept the DOJs opinion that a sitting president cannot be indicted; Which we shouldn’t because it is constitutionally incorrect by all methods of interpretation save perhaps a mentally acrobatic modernist interpretation. That would only preclude the federal judicial branch from Indicting the president. Not the state judicial branches.

Impeachment, in the U.S. and Great Britain, proceeding by a legislature for theremoval from office of a public official charged with misconduct in office.Impeachment comprises both the act of formulating the accusation and theresulting trial of the charges; it is frequently but erroneously taken to meanonly the removal from office of an accused public official. An impeachmenttrial may result in either an acquittal or in a verdict of guilty. In thelatter case the impeached official is removed from office; if the chargeswarrant such action, the official is also remanded to the proper authoritiesfor trial before a court. Source FWE

None of the language here really offers any clear details about timeframe or anything which expressly forbids Indictment and impeachment running in parallel with each other, nothing even says indictment can’t come before impeachment.

Whether this is a good thing or not for the future stability of US Democracy I cannot say. However, unless these paragraphs in Article I section 3 paragraphs 6 and 7 is amended; then Impeachment isn’t the only thing a sitting president will have to fear.

Do you agree with the conclusion and or the argument?

https://www.usconstitution.net/glossary.html
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https://www.usconstitution.net/xconst_A1Sec3.html
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https://www.usconstitution.net/consttop_cnb.html
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https://www.usconstitution.net/consttop_intr.html
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https://www.lawfareblog.com/yes-constitution-allows-indictment-president
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https://www.bostonglobe.com/opinion/2018/12/10/constitution-rules-out-sitting-president-immunity-from-criminal-prosecution/6Byq7Qw6TeJlPVUhlgABPM/story.html
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https://www.lexilogos.com/english/english_modern_early.htm
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https://www.lexico.com/en/definition/nevertheless
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https://www.lexico.com/en/definition/notwithstanding

deletedmemberMD

Modified argument in the Link below.

https://www.reddit.com/r/Ask_Politics/comments/dqlooo/dear_doj_this_is_how_you_properly_interpret_the/?utm_medium=android_app&utm_source=share

Terrapin Station

Democrats need to worry about running someone who can beat Trump, and they should have more or less have figured this out by now, as the election is only a year away. They need someone who isn't too old, who is charismatic, who is fairly moderate politically, with no (potential) big scandals or controversies in their background.

deletedmemberMD

↪Terrapin Station

While I agree with you; that doesn’t change the issue of the constitution and how it relates to the processes of both Impeachment and Indictment, it is a key issue in both current and future political dialogues. It is essential, that the question of whether or not a sitting president can be indicted be examined and answered.

So based upon the argument in the OP, how would you vote? Can a sitting president be indicted or not?

Echarmion

Upon examination of the language used, we see the term “Party convicted shall nevertheless be liable and subject to indictment”. Some defenders of the DOJ opinion have pointed to the past tense use of “convicted”, to mean after impeachment can come indictment. This comes from a complete misunderstanding of the word “Nevertheless” in both the times the document was written, and the usage of the word now being quite remarkably unchanged in modern dictionaries. — Mark Dennis

I don't find this line of reasoning convincing. The subject of the sentence you're examining here is "the party convicted". So the rest of the sentence refers to that, and it does indeed seem reasonable to point out that the sentence therefore makes no statement about parties that are not convicted. Adding "nevertheless" doesn't change the meaning of the sentence.

Now, from a systematic perspective, it seems very likely that this sentence doesn't want to make any statement at all about whether a sitting president can be indicted. It merely clarifies that, while impeachment has limited repercussions, these limits do not extent to other forms of legal prosecution. One can argue based on that that other forms of prosecution must be possible. But this doesn't provide a clear answer to whether prosecution is possible at all times.

Probably the best legal argument you can make is a very simple one: The US Constitution says all men are equal before the law. It contains no explicit exception for sitting presidents, and there is no clear case for an implicit exception. Therefore, the president is just another man, subject to criminal prosecution.

deletedmemberMD

↪Echarmion

I mean the definition at the time and now of Nonetheless and Notwithstanding to mean “Not hindered or obstructed by” seems pretty clear to me.

Then there is the opinion of Lawrence Tribe of Harvard university to take into account. Experts in constitutional law would all point to this being an originalist, historic and contemporary literalist and Democratic interpretation, which are four of the standard methodologies used to interpret constitutional law by the judicial branch. I can’t even begin to think of what the modernist perspective might be and I’ve tried but I can’t think of a semantic counter argument to “Not hindered or obstructed by”.

The whole DOJ line “Presidents are too busy to be answering to criminal indictments” but are not busy enough to not attend their senate trial is ridiculous to me and has no constitutional basis. It’s entirely undemocratic and completely compromises the systems of checks and balances put in place since the constitution was put into effect.

I know I’m preaching to the choir right now about the conclusion, still as far as I and a friend who has worked in law for over ten years can tell; the argument is sound.

The source links are all really useful. You should check them out when you’ve got the chance, I know it’s a lot haha

Pfhorrest

Democrats don’t need someone “moderate” i.e. Republican Lite, they need someone who supports things the left half of the electorate actually want instead of just being the lesser evil.

deletedmemberMD

Guys, if you want to talk about Donald trump and the current presidential candidacies can you please keep your discussions in the appropriate threads.

This thread is for discussion about Only the US constitution and things surrounding that as they stand. All the official roles described should not be construed as the current holders of those offices but the offices themselves.

@Terrapin Station @Pfhorrest

Is that fair for me to ask guys? Either discuss the constitution or continue a discussion on your chosen subject in the appropriate post please.

Pfhorrest

Sorry, just replying to Terrapin.

I voted Yes BTW.

deletedmemberMD

↪Pfhorrest

it’s okay :) thanks!

Echarmion

I mean the definition at the time and now of Nonetheless and Notwithstanding to mean “Not hindered or obstructed by” seems pretty clear to me. — Mark Dennis

Sure. But I don't see how that supports your argument given the context it's used in.

Then there is the opinion of Lawrence Tribe of Harvard university to take into account. Experts in constitutional law would all point to this being an originalist, historic and contemporary literalist and Democratic interpretation, which are four of the standard methodologies used to interpret constitutional law by the judicial branch. I can’t even begin to think of what the modernist perspective might be and I’ve tried but I can’t think of a semantic counter argument to “Not hindered or obstructed by”. — Mark Dennis

As per the article you linked, Lawrence Tribe makes the same point I do: that Article 1, Section 3 merely clarifies that being convicted in an impeachment trial doesn't bar other legal trials. He brings up double jeopardy, which would be another reason for such a clarification.

He also goes on to argue that the lack of an explicit immunity for sitting presidents suggests that no such immunity was intended.

The whole DOJ line “Presidents are too busy to be answering to criminal indictments” but are not busy enough to not attend their senate trial is ridiculous to me and has no constitutional basis. It’s entirely undemocratic and completely compromises the systems of checks and balances put in place since the constitution was put into effect. — Mark Dennis

I don't think an immunity for the sitting president would be patently ridiculous, as long as this immunity could be removed by Congress.

Constitutional Interpretation: USA Article I, Section 3

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