Thread: Lawnewz: A Hillary Clinton Indictment Could Create a Constitutional Crisis

A Hillary Clinton Indictment Could Create a Constitutional Crisis

by John Banzhaf | 4:18 pm, November 3rd, 2016



FBI Director James B. Comey’s letter to some members of Congress – which was certain to be leaked to the public – that his agency is investigating newly discovered emails which may (or may not) have some bearing on the earlier investigation of Hillary Clinton’s emails and email server, has triggered widespread speculation about its possible impact on Tuesday’s presidential election. But beyond its impact, if any, on the election itself, it’s not too early to begin considering the impact – even if the possibility is seen by many as remote – if the former Secretary of State is indicted as a result.

It’s not too early because, if she is indicted, such an unprecedented situation could create a variety of confounding constitutional conundrums and other problems which legal scholars are only beginning to wrestle with, and for which we should prepared in so far as possible. Indeed, it has the potential to create several different possible constitutional crises as serious as Watergate.

I say this as someone who lived through the various constitutional crises which Watergate created. Indeed, I helped get the special prosecutors which led to President Nixon’s downfall appointed.

These appointments may have helped avert some of these unprecedented constitutional problems which can arise when the attorney general in overall charge of prosecuting Watergate wrongdoers is himself a criminal, and when a president suspected of being “a crook” (in Nixon’s words) is stonewalling and actively trying to obstruct the investigation.

OBAMA PARDONS

To begin with, if Clinton is indicted – indeed, even before she is indicted – President Barack Obama could, while he is in office, pardon her for any and all federal crimes she may be committed.

There is clear precedent. In September of 1974, President Gerald Ford gave Nixon a full and unconditional pardon for any crimes he may have committed against the U.S. while president.

His reasoning, which Obama may also find equally persuasive here, is that it was in the best interests of the country to be able to put the situation behind us.

Ford claimed it was “a tragedy in which we all have played a part. It could go on and on and on, or someone must write the end to it. I have concluded that only I can do that, and if I can, I must.”

RISKS IF TRUMP WINS

A win by Donald Trump would create major legal risks for Clinton since it would greatly increase the chances of her indictment, and of her eventual conviction, because Trump has repeatedly announced that he has pre-judged her guilt, and believes she should be in jail (actually prison). Indeed, his commitment to put her behind bars if elected has been made so frequently and so forcefully that Trump would be very reluctant to retreat from it even if he could.

Thus, anyone appointed as Trump’s Attorney General would probably have to share Trump’s views regarding Clinton and her alleged criminal acts. Moreover, if he were unwilling to press the prosecution as hard as Trump wished, the AG serves at Trump’s pleasure, and can be fired for disobeying even a legally-dubious order to insure her conviction.

There is also clear precedent here. In what is called the “Saturday Night Massacre,” President Nixon forced the resignations of Attorney General Elliot Richardson, and then newly-appointed Attorney General William Ruckelshaus, when they each refused to go along with Nixon’s attempt to scuttle a subpoena issued against him by a special prosecutor.

IF CLINTON WINS AND IS THEN INDICTED

If, however, Clinton is indicted after winning the election but before being inaugurated, she would not then automatically gain immunity from prosecution, but her lawyers could almost certainly stall the trial until after she became president.

During that period of time, it is also very unlikely that the lame-duck House would hold hearings and stage debates to try to impeach her (i.e., charge her with wrongdoing) since she could not be removed from an office (i.e. convict her of the impeachment) she didn’t yet hold.

IF THERE ARE FAITHLESS ELECTORS

But another real threat if she were indicted is that electors pledged to her might decide, in view of the drastically altered circumstances where Clinton has been indicted and may face a criminal trial while in office, not to cast their electoral votes for her.

These so-called “faithless electors” – members of the Electoral College who do not vote for the candidate whose election they stood for – have never changed the outcome of a presidential election, but there have been more than 150 such incidents in our history.

Although laws in about 30 states purport to insure that state’s electors will cast their electoral votes in accordance with the votes of a majority of the state’s citizen voters, these laws have never been enforced, and there is strong reason to believe they are unconstitutional.

For example, a federal judge recently held unconstitutional Virginia’s statute that provided criminal penalties for delegates to party conventions who do not follow the results of the presidential preference primary, saying that the statute “exceeds the powers retained by the Commonwealth of Virginia under the Constitution of the United States and cannot be enforced.”

In other words, Virginia (and perhaps other states) probably cannot punish Electoral College electors who may cast their electoral votes for a candidate other than Clinton.

In 1952 the Supreme Court did uphold the constitutionality of state pledge laws, although not the constitutionality of punishing actual unfaithfulness. Indeed, it did not even suggest than any court could determine – or force – how an elector would have to vote, and many scholars say that no court would ever issue such an order.

This is especially true here because many if not more of these laws were designed to protect the interests of the state political party, and not the interests of a specific candidate.

EFFECTS OF FAITHLESS ELECTORS

So, if the Democratic Party persuades at least 270 Clinton electors to cast their votes for a substitute (e.g., Kaine, Biden, etc.) – because of the indictment, the serious blemish it creates for the party, and the threat of a criminal trial – there would be a Democratic president other than Clinton.

However, if only some but not all democratic electors declined to vote for Clinton, and as a result there was a deadlock or if no candidate received a majority, a “contingent election” is held.

The election of the President then goes to the House of Representatives, where each state delegation casts one vote for one of the top three contenders to determine a winner. This has actually happened two or three times.

CLINTON MIGHT PARDON HERSELF

If Clinton is inaugurated and thereby becomes president, it would appear that she can legally pardon anyone, including herself, even before there is a trial or even an indictment.

While there are arguments that, although the president’s power to pardon for federal crimes is virtually unlimited, no person can be permitted to pardon herself, they seem weak.

Moreover, if Clinton were inaugurated and then did purport to issue a pardon to herself, it is doubtful that any potential plaintiff would be found to have legal standing to contest it in court.

This, of course, would not preclude Trump or others from claiming that the pardon is invalid, and possibly precipitating some type of crisis.

CLINTON ELECTED BUT NO PARDON

If Clinton becomes president and is subsequently indicted but does not issue herself a pardon, it is not clear if she can then be forced to undergo a trial. Many scholars argue that a sitting president cannot be tried, although some disagree.

The Justice Department opined, in a memo from the Office of Legal Counsel in 1973, and another from 2000, that a sitting president cannot be prosecuted, at least as long as he remains in office. A White House attorney once suggested to the Supreme Court than a sitting president cannot be prosecuted, since a president who controls prosecutions cannot himself be subject to one.

But the Supreme Court subsequently upheld the law which authorized the appointment of special prosecutors who might then have such power, even over presidential opposition. The Supreme Court also held that President Bill Clinton did not have even temporal immunity from a civil law suit.

IMPEACHMENT

Moreover, precedent suggests that Clinton could not be impeached and removed as president based upon alleged criminal acts which occurred prior to the time she assumed office because, historically, alleged crimes committed before a president takes office were never considered impeachable offenses.

At least that was the conclusion of Congress dating back to the latter half of the 19th century. although the Constitution does not spell out any such requirement.

Or, as Gerald Ford famously said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

But if a heavily Republican Congress – and it would take an overwhelming percentage since she could be removed only if two-thirds of the Senators agreed with House’s bill of impeachment – tried to remove her from office based upon pre-inauguration wrongdoing, and/or she refused to leave, there could be a constitutional crisis.

However, if they tried to convict her for allegedly committing new crimes such as obstructing an investigation or lying under oath about it, or if they simply tried to harass and/or otherwise embarrass her with numerous lengthy investigations, they would be on much firmer ground.

Needless to say, some of the scenarios above could easily blow up and create a constitutional crisis, especially since so many people apparently already believe that the election is already “rigged” – for Clinton and against Trump – and Trump has strongly hinted that he would fight anything which might purport to hand the presidency to Clinton.

Thus, with the election only a few days away, and an indictment at least possible (although perhaps unlikely) within weeks, it is certainly not too early for legal scholars and political tacticians to begin researching and analyzing the important constitutional and legal problems which might be created.

This election, arguably the most contentious and vicious in recent history, has the potential to give rise to more serious constitutional problems than anything since Watergate.

This is an opinion piece. The views reflected in this article are those of this author.

John F. Banzhaf III is a professor of public interest law at the George Washington University Law School who is best known for his legal cases against cigarette commercials and smoking, discrimination, environmental and public safety problems, etc. However he also filed a legal action which helped lead to the appointments of the two different Watergate special prosecutors whose presence and efforts helped to avert several constitutional crises.

http://lawnewz.com/high-profile/a-hi...tional-crisis/

Here’s What Could Happen if Hillary Clinton is Indicted or Steps Down

by Ronn Blitzer | 4:07 pm, October 28th, 2016



The 2016 Presidential election is rapidly approaching, and the FBI just announced that they are reopening their investigation into Hillary Clinton‘s private email system. With the Democratic candidate once again the subject of a criminal investigation, it raises many questions as to what happens if she is indicted or relinquishes her candidacy before the election, or even after. The law is hazy in some of these situations, so let’s tackle them one by one.

1. If Clinton is indicted before the election

The FBI merely said that they are reopening their investigation to examine new emails that came to light. They have yet to even determine whether the emails are actually evidence of criminal activity, let alone decide whether or not to prosecute. Therefore, it’s highly unlikely that an indictment would come before November 8. If it did, the indictment itself wouldn’t mean that Clinton could no longer run, as an indictment is only an accusation, not a conviction. As my colleague Elura Nanos wrote earlier this year, Clinton could theoretically hope that voters hate Trump enough that they still vote for her (and hope that she isn’t convicted before taking office).Of course, even if she wins on November 8, the nature of our electoral system makes it so that the members of the Electoral College could theoretically go rogue and not vote for Clinton, even if their states tell them to. George Washington University law professor John Banzhaf wrote recently that only 30 states have laws on the books prohibiting this from happening, and that those laws have never been enforced and might be unconstitutional.

More likely, however, is that she would be pressured — by herself, the public, or the Democratic party — to give up her candidacy.

2. If Clinton steps down before the election

Should Clinton relinquish her candidacy before the election, the Democratic National Committee has rules in place for what happens next. Article 2, Section 7 of the DNC Bylaws says that if there is a vacancy on the national ticket, a special meeting of the Committee “shall be held on the call of the Chairperson,” where they would choose a new candidate. Such meetings make decisions based on a majority of those in attendance. Since we are exactly so close to election, there is one major problem: The ballot deadlines have passed in nearly every state. For example, in West Virginia, the law says a candidate must withdraw “no later than eighty-four days before the general election.” So the Democratic leadership would likely have to wage a public campaign to tell voters that if you vote for Clinton/Kaine, you are really voting for Biden (or whoever it maybe)/Kaine. Then the electors would have to change their vote for the new ticket when they meet on December 19th, 2016.

3. If Clinton wins the election and is indicted before the inauguration

Here’s where it starts getting tricky.

As mentioned earlier, an indictment is far different from a conviction. An indictment does not disqualify a person from being eligible for the presidency (neither does a conviction, technically, but being in jail would probably get in the way). Should Clinton be indicted after winning the election but before officially taking office, she could try to play beat-the-clock and hope to take office before her case concludes. Once a person is in office as President, it gets even more complicated, as we’ll see later. Should Clinton be indicted and convicted prior to her inauguration, and end up in jail, she may be deemed incapacitated, in which case Section 3 of the 20th Amendment kicks in and the Vice President-Elect, in this case Tim Kaine, would become President. (though that seems unlikely as the wheels of justice do not turn that fast)

4. If Clinton wins the election and steps down before the inauguration

If Clinton becomes President-Elect and decides to step down before her inauguration, either due to being indicted or out of fear that an indictment may be imminent, it would be similar to the situation just described, and Kaine would become President. However in a situation where a candidate steps down after the general election, but before the Electoral College chooses the winner, federal law says the electors would be able to vote for whomever they want, although states may pass their own laws controlling this situation.

5. If the investigation continues after the election and Clinton wins and is inaugurated before a decision is made. Could Clinton be indicted when she becomes President?

The law is unsettled when it comes to this situation, but most opinions tend to believe Clinton would luck out, due to the philosophy that Presidents — and only Presidents — are immune from prosecution while in office.

The Department of Justice addressed this in a memorandum by the Office of Legal Counsel (OLC) in 1973. That memo said that prosecution of a sitting President would undermine the power of the executive branch and its ability to function. In 2000, a new memo reviewed that determination and agreed that a President is immune from indictment and prosecution for the duration of their time in office. Of course, that memo acknowledged that no court has ruled on this issue yet. It almost happened during the 1974 Watergate scandal.

Indeed, the issue was argued before the Supreme Court. White House attorney James D. St. Clair argued that because the Constitution says “The executive power shall be vested in a President of the United States of America” that includes federal prosecutions. St. Clair argued that since the President controls prosecutions, the President isn’t subject to them himself. However, Special prosecutor Leon Jaworski argued that the executive branch has evolved since 1789 to include the Cabinet and others, so this line of reasoning is faulty.

St. Clair also mentioned that the Constitution says that after an official is impeached and convicted by the Senate, they are “liable and subject to indictment, trial, judgment and punishment, according to law.” He took that to mean that a President is only able to be prosecuted after being removed from office. Jaworski argued that this line applies to all federal officials subject to impeachment, not just Presidents. Since other officials are subject to prosecution, it cannot mean that impeachment is the only method of charging a President.

Alas, Chief Justice Warren Burger decided that it wasn’t necessary to rule on this issue in order to address the matter that was before the Court. So at this point, we just don’t know if Clinton could be indicted as a sitting president. The law is still murky.

So, what about impeachment? Pretty clear here. The House of Representatives determined in 1873 that Presidents cannot be impeached for offenses they committed before they took office. Since the conduct would have taken place prior to her becoming President, she couldn’t be impeached for it.

On top of all that, as LawNewz‘s Chris White noted, the Article II of the Constitution says the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” So theoretically, President Hillary Clinton could pardon herself.

Long story short, the Department of Justice can very well affect who our next President is. If they move swiftly to indict, or if Clinton believes she’s in trouble, she could drop out before November 8. Alternatively, if an indictment comes soon after Clinton wins the election, she could still feel pressure to step down before she takes office. It all depends on what the FBI finds in these emails, what they decide to do about it, and when. But the clock’s ticking.

http://lawnewz.com/high-profile/here...or-steps-down/

If Hillary Is Indicted, President Clinton Could Pardon Herself and Congress Might be Helpless

by Chris White | 2:01 pm, October 28th, 2016



On Friday, just days before the election, reports are emerging that the FBI has re-opened the Hillary Clinton email investigation. “The FBI has learned of the existence of emails that appear to be pertinent to the investigation,” a letter from FBI Director James Comey reads. And while Comey didn’t indicate how long the investigation could take, it’s pretty safe to bet investigators won’t come to any kind of decision before November 8th. It may even take months for the FBI to wrap up round two of this.

So what happens if Clinton is elected, takes office, and then finds her self under indictment? It might not be likely, but it is worth exploring the legal possibilities.

It is Friday, January 20, 2017 and Hillary Clinton has just been sworn in as the 45^th President of the United States after narrowly defeating Donald Trump in November. Republicans managed to hold both the House of Representatives and the Senate. A few weeks after winning the election, however, the Department of Justice handed down a multi-count indictment against Clinton over her handling of classified information and her involvement in an alleged pay for play scandal with the Clinton Foundation during her time as Secretary of State. It is a scenario that several of our commentators, and twitter followers have asked us to analyze.

As I am sure you can imagine, such a situation would cause a political firestorm of epic proportions. But before dismissing this scenario as some sort of wild fantasy, be reminded that we are talking about the Clintons who are no strangers to bizarre scandals (bringing nearly all of them upon themselves). In fact, a delayed announcement would be similar to what happened with David Petraeus in 2012 when DOJ sat on announcing that investigation until three days after the election.

Now, back to January 20, 2017. Could a future President Hillary Clinton pardon herself?

The short answer is she could certainly try, and may very well get away with it. What’s more, there is likely little Congress could do about it — even with a Republican controlled House of Representatives and Senate. Here is why.

The president’s pardon power comes from Article II, Section 2 of the United States Constitution that provides, “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

Based on the language of Article II, Section 2, the only limits placed on the power are that pardons may only be issued for federal offenses (not civil or state crimes), and a pardon cannot override the Congress’ impeachment power. Presidents have used this power to issue pardons in a wide range of matters throughout the country’s history. However, no president has ever attempted to pardon himself.

As a result, the legality of the self-pardon remains an open question. There are persuasive arguments on both sides. For the sake of brevity, the two arguments can be boiled down to this: (1) those that argue a self-pardon violates longstanding legal principals that a person should not act as their own judge and that no person is above the law; and (2) those, including Richard Nixon’s attorneys in the aftermath of Watergate, that argue that power to pardon is broad and unlimited, except for the two specific limitations mentioned in the Constitution.

So, assuming Clinton follows the latter approach and issues the self-pardon, where does that leave Congress? Could the House of Representatives start impeachment proceedings based on the criminal indictments?

That answer to that question is a resounding “no.”

Under Article II, Section 4 of the Constitution, “The President… shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The Constitution further provides that impeachment proceedings are to begin in the House of Representatives and if approved by a simple majority vote, the matter proceeds to the Senate for trial. When the president is tried, the Chief Justice presides over the Senate trial. A conviction requires a 2/3-majority vote and the Senate may impose punishment including barring the individual from holding future office. Although, the Senate is required to take an additional vote if it wishes to impose a ban on holding future office.

In Clinton’s case, however, the conduct underlying this hypothetical indictment occurred prior to her taking office. The House of Representatives, as far back as 1873, has determined that a person cannot be impeached based on conduct prior to them holding office. In other words, House precedent says a President Hillary Clinton could not be impeached as president for crimes related to the e-mail server or the Clinton Foundation.

In 1873, the House of Representatives considered impeaching the Vice President for crimes committed before he took office. After considering the matter, the House determined impeachment was only proper for crimes committed while in office.

So, under this precedent, a President Hillary Clinton could pardon herself without the Congress being able to do anything about it.

However, all options may not be exhausted. There remains a possibility that self-pardon is grounds for impeachment as an abuse of power. Furthermore, there is the possibility of impeaching Clinton back from her time as Secretary of State.

This is an opinion piece. The views expressed in this article are those of the author.
A version of this article was first published on May 23, 2016, but this article has been updated with new information.

http://lawnewz.com/opinion/if-hillar...t-be-helpless/