Tag Archives: removal

Criminal Prosecution of a President

12 Tuesday Mar 2019

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Can a sitting president be indicted? W. Burlette Carter approaches this question from a historical perspective in her forthcoming article Can a Sitting President be Federally Prosecuted? The Founders Answer. Carter asserts that the Founder’s answer would be one based on jurisdiction:

The Founders would have recognized that, before the formal issuance of Articles of Impeachment, courts of law have the power to stay their own proceedings against a President for good cause, just as English/British common law courts with concurrent jurisdiction always could. And they would have have accepted that courts of law can, in the first instance, decide evidentiary issues such as executive privilege for matters proceeding in their fora. Again, despite Parliamentary power over impeachment, common law courts had long done so in England and Great Britain, so long as they otherwise had jurisdiction.

For an in-depth examination of the British and early American view on jurisdiction to prosecute the president, follow the link above.

190311-donald-trump-ap-773.jpgAlex Brandon/AP Photo

The Anonymous Letter

06 Thursday Sep 2018

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The nation is abuzz with talk of the anonymous op-ed piece published by the New York Times. The writer is apparently a senior official in the Trump Administration and names him-or-herself  as part of the “quiet resistance.” The piece describes efforts taken by its author and others to walk-back, avoid, and otherwise subvert the President’s more rash decisions. In essence, it paints Trump as an out-of-control child. Some readers will wonder how this is news; however the piece is significant for several reasons. 1) It corroborates other, similar accounts of the Trump administration, such as those leaked by aides and those written in “Fear,” Bob Woodward’s book; 2)  it simultaneously bolsters and rebuffs the 25th amendment theory of removal. The author of the piece wrote that Trump’s cabinet considered removing the President for incompetence, but ultimately decided against it because “no one wanted to precipitate a constitutional crisis.” This confirms both that at some point use of the 25th amendment was a real possibility and also that it will likely never happen. That being said, confirmation of the President’s incompetence could add strength to other removal proceedings, such as through impeachment in the House; 3) perhaps most importantly, it helps to resolve the mixed relationship the Trump Administration has with Russia. The author wrote that though Trump has complained about Russian sanctions, the ‘resistance’ has worked to ensure it sanctioned and otherwise punished the nation for stepping out of line. Trump has boasted in the past that “there’s never been a president as tough on Russia as I have been.” Now we know that the punitive steps that the Trump Administration has taken towards Russia may very well have had nothing to do with Trump or have been done in spite of him. Though it may seem a small thing in light of evidence mounting elsewhere, this strengthens the case for collusion and could perhaps help to usher in impeachment.

920x920.jpgSusan Walsh, AP

Limiting the Removal Power

28 Monday May 2018

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Qualified Tenure: Presidential Removal of the FBI Director is an article written by Leah A. Hamlin which was published in the Ohio Northern University Law Review. It addresses the question of whether the President’s power to remove an FBI director is limited by the 10-year term instituted by Congress, and whether it may, constitutionally, be further limited by Congress. Hamlin ultimately concludes:

that the ten-year term does not limit the president’s ability to remove the director at will, and that, given the importance of the FBI director to the effective functioning of a unitary executive, Congress may not limit the president’s removal power without infringing on the separation of powers limits laid out in case law.

This question is especially significant, of course, in light of the firing of James Comey which was met with such outrage, and which some believe could constitute obstruction of justice.  Though Hamlin concludes that Congress cannot not interfere with the President’s removal power, it is doubtful that her conclusion would extend so far as to suggest that Congress could not wield its impeachment power in wake of a removal which constitutes a high crime or misdemeanor.

gettyimages-694398560.jpgThe Washington Post/Getty Images

Pres. Trump Hiding his Health

03 Thursday May 2018

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Trump’s former doctor, Harold Bornstein, claims that a 2015 statement about the  President’s health, which was then attributed to Bornstein, was in fact written by Trump himself. For those who don’t recall, a passage from the “Doctor’s letter” which received special attention went as follows: “[h]is physical strength and stamina are extraordinary. If elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency.” Bornstein went on to say that, after he let it slip that Trump took a hair-loss medication, three men from Trump’s office, a group which included Alan Garten, a lawyer, and Keith Schiller, former director of Oval Office  operations, came to his office and took Trump’s medical records in a “raid”-like fashion.

Trump’s actions have been described as totalitarian, and one opinion summarizes his concern over the news as follows: “[d]oes he have a condition or problem that will shorten his life or impair his ability to do the job?” The problem with Trump’s attempts to hide his medical history can be divided into two issues: 1) his fitness to serve, and 2) a trend of dishonesty.

There has been some speculation about the use of the 25th amendment to remove Trump for mental or physical unfitness.  One might argue that if Trump is trying to hide some serious health issues, that might increase the likelihood of his removal; however, Trump is hardly the first president to have and hide health issues. President Franklin Delano Roosevelt  concealed the true extent of his polio-caused paralysis throughout his political career, and kept his increasing heart problems carefully under wraps during his third and fourth terms. President Wilson suffered from a severe stroke while in office which his wife and doctor hid from the public, and President Kennedy, though “famous for having a bad back,” successfully hid “other illnesses, including persistent digestive problems and Addison’s disease, a life-threatening lack of adrenal function.”

What may distinguish Mr. Trump’s blatant falsification of his medical history from the concealment practiced by some of his predecessors is the degree to which this incident is part of a larger pattern of lying.

The topic of President Trump’s pervasive falsehoods has been explored thoroughly on this blog. Should congress choose to pursue impeachment on that basis, Trump’s efforts to hide his health may constitute another avenue of inquiry.

 

What to do about Trump’s Mental Health?

03 Wednesday Jan 2018

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This article from the Atlantic takes a close look at President Trump’s mental health, and the inability of our legal system to deal with a cracked President. Over the past year there has been a lot of speculation as to the President’s capacity, and even calls to utilize the 25th amendment to remove the President should he prove mentally unfit. The President’s tweets (such as the recent one about his ‘nuclear button’), his speech, and even the manner by which he takes a drink of water are all seen as indicators of his lack of mental capacity. But should this speculation prove to be accurate, and Trump actually suffers from some sort of dementia, it seems there is little that can be done. The 25th amendment is the usual mechanism for removing an unfit president, but that requires that the President’s cabinet declare him unfit, and that 2/3 of Congress vote to remove him. That make it an arguably higher standard than impeachment. Therefore, if Trump (continues to) prove himself unfit, it may be that impeachment is still the worried citizen’s best bet.

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Will Republican Senators Remove Trump

30 Saturday Dec 2017

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I read a piece from the L.A. Times this morning, which opined that though Mueller’s case for obstruction of justice is growing stronger with recent revelations surrounding Michael Flynn, it seems unlikely that Republican Senators will vote to remove the President. Rather they will try to cut down the credibility of  Mueller, as President Trump has done in recent weeks. It’s hard to say this lack of faith in the Republican Party is not warranted. With a few exceptions, Republican Senators have been reticent towards, and even supportive of, President Trump’s actions, which have ranged from unorthodox to corrupt. However, it seems to me that not all is lost in the Republican Party. Not, at least, if we can assume that the Party answers to its base.

President Trump rode into office on a wave of anti-institutionalism. His support came from the people’s distrust of big government. So what will happen when it is revealed that Trump has become the thing which he rallied his supporters against; when he becomes the face of corrupt government? What if then, instead of clouding the truth and pointing fingers, Republicans acted with integrity? What if Republican Congressmen finally said ‘enough is enough’? I can’t be sure, but I can only imagine that the Republican base, a base which has grown tired of deceitful government officials, would rally around them.  It would be a huge win for a party which has been burdened by “fake news” for the past year. And it would be an inspirational act: the sleeping elephant awoken, to finally trumpet its unbridled trunk.

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