prosecution

Wednesday December 21, 2022

Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Wednesday December 21, 2022

Impeachments, Criminal Referrals, and Trading Cards

The criminal referral of Donald Trump to the Department of Justice by a House committee investigating the Jan. 6 attack is largely symbolic – the panel itself has no power to prosecute any individual.

February 11, 2021

Nonetheless, the recommendation that Trump be investigated for four potential crimes – obstructing an official proceeding; conspiracy to defraud the United States; conspiracy to make a false statement; and inciting, assisting or aiding or comforting an insurrection – raises the prospect of an indictment, or even a conviction, of the former president.

It also poses serious ethical questions, given that Trump has already announced a 2024 run for the presidency, especially in regards to the referral over his alleged inciting or assisting an insurrection. Indeed, a Department of Justice investigation over Trump’s activities during the insurrection is already under way.

But would an indictment – or even a felony conviction – prevent a presidential candidate from running or serving in office?

The short answer is no. Here’s why:

The U.S. Constitution specifies in clear language the qualifications required to hold the office of the presidency. In Section 1, Clause 5 of Article II, it states: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

These three requirements – natural-born citizenship, age and residency – are the only specifications set forth in the United States’ founding document.

January 8, 2021

But in case of insurrection, the Constitution includes no qualification regarding those conditions – with one significant exception. Section 3 of the 14th Amendment disqualifies any person from holding federal office “who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

The reason why this matters is the Department of Justice is currently investigating Trump for his activities related to the Jan. 6 insurrection at the Capitol. And one of the four criminal referrals made by the Jan. 6 House committee was over Trump’s alleged role in inciting, assisting or aiding and comforting an insurrection.

Even in the case of conviction and incarceration, a presidential candidate would not be prevented from continuing their campaign – even if, as a felon, they might not be able to vote for themselves.

History is dotted with instances of candidates for federal office running – and even being elected – while in prison. As early as 1798 – some 79 years before the 14th Amendment – House member Matthew Lyon was elected to Congress from a prison cell, where he was serving a sentence for sedition for speaking out against the Federalist Adams administration.

Eugene Debs, founder of the Socialist Party of America, ran for president in 1920 while serving a prison sentence for sedition. Although he lost the election, he nevertheless won 913,693 votes. Debs promised to pardon himself if he were elected.

And controversial politician and conspiracy theorist Lyndon Larouche also ran for president from a jail cell in 1992. (The Conversation) 

 

Friday January 15, 2021

Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Friday January 15, 2021

Can President Trump issue pardons while impeached? Experts at odds

With just days left before the end of U.S. President Donald Trump’s presidency, the House of Representatives voted to impeach Trump for a historic second time Wednesday, citing “incitement of insurrection” after a mob of supporters stormed the U.S. Capitol one week ago.

January 12, 2021

At the same time, the FBI has been making arrests across the country relating to the riots, prompting some to wonder whether Trump would try to squeeze in more pardons before his term is up, including pardoning his supporters, his family, and even himself.

Trump’s presidency has raised legal questions around pardons previously never tested in federal courts: the constitutionality of a self-pardon, for example, remains unclear since no president had ever attempted it before, with legal scholars divided on how to interpret the law.

Does Trump’s impeachment change anything when it comes to issuing pardons?

January 8, 2021

In Article II, Section 2 of the U.S. Constitution, it states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

But legal experts appear divided in what the clause “except in cases of impeachment” means.

December 3, 2020

“The conventional wisdom and centuries of treatises and textbooks tell us that when the Constitution says that the president can pardon ‘except in cases of impeachment’ means that the criminal process and the impeachment process are separate, and the president can only pardon crimes,” Brian Kalt, an expert on constitutional law and presidential history, and a law professor at Michigan State University, told CTVNews.ca in an email.

“He can’t stop an impeachment or undo an impeachment conviction, but he can still pardon any related crimes.”

With the House voting 232-197 to impeach the president, a two-thirds majority is still needed in the Senate in order to convict and remove Trump, the only U.S. president ever to be impeached twice. But the earliest a Senate trial would begin is next Tuesday, right before president-elect Joe Biden’s inauguration.

Kalt explains that Trump retains all of his powers until he is convicted or his term ends, meaning, “he can still issue pardons — whether related to his impeachment or not — while he is impeached.”

August 8, 1998

Kalt noted that former president Bill Clinton pardoned 34 people between his impeachment on Dec 19, 1998 and his acquittal on Feb 12, 1999.

“Nobody batted an eye at that because, again, the standard reading of the impeachment exception to the pardon power … is uniformly understood and accepted.”

Based on Clinton’s example, Trump could still issue pardons during his final week in office. Prior to his impeachment, he had already discussed issuing pardons for himself and his children, according to a CNN report this week, citing multiple sources. The report noted Trump, his allies and family members who partipated in the rally at the Capitol could potentially face legal exposure following the riots.

2020 Gallery – Trump

Trump could, in theory, issue a blanket pardon that covers himself and his children up until the time he leaves office, according to CNN’s source. Another source indicated that Trump may extend it to others outside the family as well, including Trump’s personal lawyer, Rudy Giuliani.

Already Trump’s previous pardons — which have included four American men convicted of killing Iraqi civilians, his former campaign manager Paul Manafort, ex-adviser Roger Stone, and his son-in-law’s father, Charles Kushner — have generated enormous outrage. (CTV)