SCOTUS: Presidents have Immunity for Official Acts

[acptulsa]

You're lying. You are purposefully ignoring the fact that even Clarence Thomas agrees with me that the constitutionality of the Senates decision to remove a president through impeachment cannot be challenged in court.

First he lets the Alt-Right Division, MSM wash his brain then he rushes over here and goads us into turning up the heat. Then he can't figure out why the thing shrinks on him.

 

[Sonny Tufts]

Impeachment is a political process, but it is one that must be predicated on High Crimes and Misdemeanors.
And since Congress may not criminalize legitimate uses of core powers they may not call them High Crimes or Misdemeanors and use them to impeach.

Again, you are inserting the word "legitimate" in connection with core powers, something SCOTUS didn't do.

Moreover, an impeachable/removal act is whatever the House and Senate say it is. Drunkenness isn't a crime, yet a federal judge was impeached and removed for it. In addition, SCOTUS will not review the House and Senate's actions in an impeachment proceeding; it is a nonjusticiable political question. See Nixon v. United States , 506 U. S. 224 (1993), in which the Court said:

Nevertheless, Nixon argues that judicial review is necessary in order to place a check on the Legislature. Nixon fears that if the Senate is given unreviewable authority to interpret the Impeachment Trial Clause, there is a grave risk that the Senate will usurp judicial power. The Framers anticipated this objection and created two constitutional safeguards to keep the Senate in check. The first safeguard is that the whole of the impeachment power is divided between the two legislative bodies, with the House given the right to accuse and the Senate given the right to judge. Id., No. 66, p. 446. This split of authority "avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches." The second safeguard is the two-thirds supermajority vote requirement. Hamilton explained that "[a]s the concurrence of two-thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire." Ibid.

 

[jmdrake]

Again, you are inserting the word "legitimate" in connection with core powers, something SCOTUS didn't do.

Moreover, an impeachable/removal act is whatever the House and Senate say it is. Drunkenness isn't a crime, yet a federal judge was impeached and removed for it. In addition, SCOTUS will not review the House and Senate's actions in an impeachment proceeding; it is a nonjusticiable political question. See Nixon v. United States , 506 U. S. 224 (1993), in which the Court said:

You are, of course, correct. [MENTION=65299]Swordsmyth[/MENTION]'s position leads to the idea that Congress is somehow not a co-equal branch of government, which is of course absurd. The Senate being given the final word on impeachment is an important check on the powers of the other two branches. For example, we all agree that bribery is a reason for impeachment. But what is a bribe? SCOTUS recently held that under the federal statute, an elected official accepting a percentage "gratuity" after awarding a lucrative dump truck contract was not a bribe. More than one justice has been recently accused of accepting gratuities. If members of SCOTUS got impeached would SCOTUS get to ultimately decide whether part of their group could be impeached? That would mean that SCOTUS and the President would have absolute authority in their realms but Congress's constitutional absolute authority was somehow limited. Again, that's absurd.

The Senate has a self check on impeachment abuse in that there is a 2/3rds majority vote requirement, as opposed to the simply majority needed for a SCOTUS decision or the single person decision of the president. While multiple presidents have been impeached, only Nixon was ever forced out of office. The system has already worked as intended. You can convince 12 jurors in an overwhelmingly Democratic district that somehow claiming hush money to a porn star deserved a single felony conviction let alone 34, but never get enough Republicans in the Senate to go along with that to have a 2/3rds majority. But if Trump in his (very likely at this point) 2nd term starting rounding up left wing journalists and imprisoning them without cause or drone striking high profile Democratic politicians like Kamala Harris or Gavin Newsome, that would (I hope) win over enough moderate Republicans for impeachment and removal. So why no impeachment for Obama for killing an American citizen without a trial or Obama, Trump and Biden for prosecuting Julian Assange for protected 1st amendment speech? Because not enough Republican or Democratic members of the House and Senate care about those things (most applaud I expect) and most Americans aren't even aware about the facts surrounding those incidents.

Here is the bottom line. It is, of course, right and proper to make the argument to the U.S. Senate that removal shouldn't happen because a president fired someone Congress didn't want him to fire (Andrew Johnson), or lied under oath about having sex (Clinton) or made a phone call trying to get Ukkraine to investigate obvious corruption by a former vice president (Donald Trump), or denied the outcome of an election which may have had the effect of motivating some of his followers to go beyond "peaceful protests" and smash windows and try to get past a barricade to the area where congress was hiding out. (Trump). In each of those cases impeachment failed. A cynic might say "Well that was just because of partisan politics." But I say those are examples were partisan politics worked exactly as the founders intended.

 

[Sonny Tufts]

I'll repeat: immunity from criminal prosecution has no effect upon impeachment.

The Constitution describes the grounds of impeachment as “treason, bribery, or other high Crimes and Misdemeanors.” While treason and bribery are relatively well-defined terms, the meaning of “high Crimes and Misdemeanors” is not defined in the Constitution or in statute and remains somewhat opaque. It was adopted from the English practice of parliamentary impeachments, which appears to have been directed against individuals accused of crimes against the state and encompassed offenses beyond traditional criminal law.

Some have argued that only criminal acts are impeachable offenses under the United States Constitution; impeachment is therefore inappropriate for non-criminal activity. In support of this assertion, one might note that the debate on impeachable offenses during the Constitutional Convention in 1787 indicates that criminal conduct was encompassed in the “high crimes and misdemeanors” standard.

The notion that only criminal conduct can constitute sufficient grounds for impeachment does not, however, comport with historical practice. Alexander Hamilton, in justifying placement of the power to try impeachments in the Senate, described impeachable offenses as arising from “the misconduct of public men, or in other words from the abuse or violation of some public trust.” Such offenses were “political, as they relate chiefly to injuries done immediately to the society itself.” According to this reasoning, impeachable conduct could include behavior that violates an official’s duty to the country, even if such conduct is not necessarily a prosecutable offense. Indeed, in the past both houses of Congress have given the phrase “high Crimes and Misdemeanors” a broad reading, “finding that impeachable offenses need not be limited to criminal conduct.”

A variety of congressional materials support this reading. For example, committee reports on potential grounds for impeachment have described the history of English impeachment as including non-criminal conduct and noted that this tradition was adopted by the Framers. In accordance with the understanding of “high” offenses in the English tradition, impeachable offenses are “constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself.” “[O]ther high crimes and misdemeanor” are not limited to indictable offenses, but apply to “serious violations of the public trust.” Congressional materials indicate that the term “Misdemeanor ... does not mean a minor criminal offense as the term is generally employed in the criminal law,” but refers instead to the behavior of public officials. “[H]igh Crimes and Misdemeanors” are thus best characterized as “misconduct that damages the state and the operations of government institutions.”...

The purposes underlying the impeachment process also indicate that non-criminal activity may constitute sufficient grounds for impeachment. The purpose of impeachment is not to inflict personal punishment for criminal activity. In fact, the Constitution explicitly makes clear that impeached individuals are not immunized from criminal liability once they are impeached for particular activity. Instead, impeachment is a “remedial” tool; it serves to effectively “maintain constitutional government” by removing individuals unfit for office. Grounds for impeachment include abuse of the particular powers of government office or a violation of the “public trust”—conduct that is unlikely to be barred via statute.

Congressional practice also appears to support this notion. Many of the impeachments approved by the House of Representatives have included conduct that did not involve criminal activity. Less than a third have specifically invoked a criminal statute or used the term “crime.” For example, in 1803, Judge John Pickering was impeached and convicted for, among other things, appearing on the bench “in a state of total intoxication.” In 1912, Judge Robert W. Archbald was impeached and convicted for abusing his position as a judge by inducing parties before him to enter financial transactions with him. In 1936, Judge Halstead Ritter was impeached and convicted for conduct that “br[ought] his court into disrepute, to the prejudice of said court and public confidence in the administration of justice ... and to the prejudice of public respect for and
confidence in the federal judiciary.” And a number of judges were impeached for misusing their position for personal profit.

Congressional Research Service Impeachmant and Removal at 7-9 (2015) (footnotes omitted and emphasis added https://sgp.fas.org/crs/misc/R44260.pdf

 

[jmdrake]

I'll repeat: immunity from criminal prosecution has no effect upon impeachment.

Good read! I found this part interesting.

The notion that only criminal conduct can constitute sufficient grounds for impeachment does not, however, comport with historical practice. Alexander Hamilton, in justifying placement of the power to try impeachments in the Senate, described impeachable offenses as arising from “the misconduct of public men, or in other words from the abuse or violation of some public trust.” Such offenses were “political, as they relate chiefly to injuries done immediately to the society itself.” According to this reasoning, impeachable conduct could include behavior that violates an official’s duty to the country, even if such conduct is not necessarily a prosecutable offense. Indeed, in the past both houses of Congress have given the phrase “high Crimes and Misdemeanors” a broad reading, “finding that impeachable offenses need not be limited to criminal conduct.”​

Consider this. Many Republicans have called on Biden to be impeached for "failing to secure the border." But border security is by definition one of the "core constitutional powers" that this latest ruling affirms where presidents have absolute immunity. So if a president cannot be criminally prosecuted for dereliction of duty when it comes to the border, based on SS's logic he can't be impeached over that either.

 

[Sonny Tufts]

The process used for impeachment was nonjusticiable.
An impeachment without one of the Constitutionally specified impeachable charges would not be covered by that ruling.
That case had a Constitutionally applicable criminal charge.

But who gets to decide whether an "impeachable charge" exists?

If you read the Court's rationale in the Nixon case, you'll find that it rested on the Constitution's giving the Senate the "sole Power to try all Impeachments." Nixon argued that the word "try" meant that the Senate itself, and not a select committee, must hear the evidence. But the Court rejected this view of the word "try".

Petitioner argues that the word "try" in the first sentence imposes by implication an additional requirement on the Senate in that the proceedings must be in the nature of a judicial trial. From there petitioner goes on to argue that this limitation precludes the Senate from delegating to a select committee the task of hearing the testimony of witnesses, as was done pursuant to Senate Rule XI. "'[T]ry' means more than simply 'vote on' or 'review' or 'judge.' In 1787 and today, trying a case means hearing the evidence, not scanning a cold record." Brief for Petitioner 25. Petitioner concludes from this that courts may review whether or not the Senate "tried" him before convicting him.

There are several difficulties with this position which lead us ultimately to reject it. The word "try," both in 1787 and later, has considerably broader meanings than those to which petitioner would limit it. Older dictionaries define try as "[t]o examine" or "[t]o examine as a judge." See 2 S. Johnson, A Dictionary of the English Language (1785). In more modern usage the term has various meanings. For example, try can mean "to examine or investigate judicially," "to conduct the trial of," or "to put to the test by experiment, investigation, or trial." Webster's Third New International Dictionary 2457 (1971). Petitioner submits that "try," as contained in T. Sheridan, Dictionary of the English Language (1796), means "to examine as a judge; to bring before a judicial tribunal." Based on the variety of definitions, however, we cannot say that the Framers used the word "try" as an implied limitation on the method by which the Senate might proceed in trying impeachments. "As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require .... " Dillon v. Gloss, 256 U. S. 368, 376 (1921).

The conclusion that the use of the word "try" in the first sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially manageable standard of review of the Senate's actions is fortified by the existence of the three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried. These limitations are quite precise, and their nature suggests that the Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word "try" in the first sentence.

Of course, under either Nixon's or the Court's definition of "try", the Senate would have the authority to determine whether the accused's conduct constituted an impeachable offense. One of the duties of a judge is to determine the law applicable to the facts, and the Senate has this obligation -- to determine whether the conduct constitutes "Treason, Bribery, or other high Crimes and Misdemeanors."

The Senate has the sole power to try an impeachment, and this applies to all aspects of an impeachment trial, including the determination of whether the accused's conduct consituted an impeachable offense. The Nixon Court noted:

The history and contemporary understanding of the impeachment provisions support our reading of the constitutional language. The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers...This silence is quite meaningful in light of the several explicit references to the availability of judicial review as a check on the Legislature's power with respect to bills of attainder, ex post facto laws, and statutes. See The Federalist No. 78, p. 524 (J. Cooke ed. 1961) ("Limitations ... can be preserved in practice no other way than through the medium of the courts of justice").

The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, James Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179, 186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to try all Impeachments." Art. I, § 3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its Members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature-the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442.

There are two additional reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments. First, the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses-the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. See Art. I, § 3, cl. 7. The Framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments:

"Would it be proper that the persons, who had disposed of his fame and his most valuable rights as a citizen in one trial, should in another trial, for the same offence, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error in the first sentence would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights, which might be brought to vary the complexion of another decision?" The Federalist No. 65, p. 442 (J. Cooke ed. 1961).

Certainly judicial review of the Senate's "trial" would introduce the same risk of bias as would participation in the trial itself.

Second, judicial review would be inconsistent with the Framers' insistence that our system be one of checks and balances. In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature. On the topic of judicial accountability, Hamilton wrote:

"The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for mal-conduct by the house of representatives, and tried by the senate, and if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges." Id., No. 79, at 532-533 (emphasis added).

Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive because it would eviscerate the "important constitutional check" placed on the Judiciary by the Framers. See id., No. 81, at 545. Nixon's argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.

Nevertheless, Nixon argues that judicial review is necessary in order to place a check on the Legislature. Nixon fears that if the Senate is given unreviewable authority to interpret the Impeachment Trial Clause, there is a grave risk that the Senate will usurp judicial power. The Framers anticipated this objection and created two constitutional safeguards to keep the Senate in check. The first safeguard is that the whole of the impeachment power is divided between the two legislative bodies, with the House given the right to accuse and the Senate given the right to judge. Id., No. 66, at 446. This split of authority "avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches." The second safeguard is the two-thirds supermajority vote requirement. Hamilton explained that "[a]s the concurrence of two-thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire." Ibid.

So the bottom line is that all aspects of an impeachment trial are nonjusticiable.

 

[Sonny Tufts]

And you would immediately go to SCOTUS to contest an impeachment without a High Crime or Misdemeanor.

The Court wouldn't have original jurisdiction in such a case.

And you don't know the constitutional meaning of "High Crime or Misdemeanor."

We have had hardly any Presidential impeachments in our history, and all of them alleged High Crimes and Misdemeanors, none of them have convicted and removed.

But we have had other impeachments that didn't involve criminal acts, and there's nothing in the Constitution differentiating between a Presidential impeachment and other types, aside from the Chief Justice's presiding in a Presidential impeachment trial.

 

[Swordsmyth]

You're lying. You are purposefully ignoring the fact that even Clarence Thomas agrees with me that the constitutionality of the Senates decision to remove a president through impeachment cannot be challenged in court.

You are purposely ignoring the fact that they only ruled that way about process disputes.
They have not ruled on unconstitutional impeachments without a criminal charge.

 

[Swordsmyth]

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors=/=Any or no reason.
It also doesn't mean core powers which the court just ruled cannot be made criminal.
It is absurd in the extreme to claim that a President can be impeached for using the powers the Constitution gives him.
You aren't making Congress a coequal branch, you are making it a supreme branch which can prevent the President from using his core Constitutional powers.
POTUS is not a Prime Minister serving at the whim of a parliament as its servant, he is an independently elected coequal branch of government.

Drunkenness is Misfeasance.

 

[acptulsa]

They have not ruled on unconstitutional impeachments without a criminal charge.

In fact, nobody has even tried to contest one there, not even when a huge swath of the public was sneering at Congress for impeaching Clinton for prevaricating over a simple blow job.

I wonder why that is? Do you suppose everyone else in the world reads the Constitution and can plainly see that no court has any part of it?

 

[Sonny Tufts]

Drunkenness is Misfeasance.

But it's not a crime.

 

[Swordsmyth]

In fact, nobody has even tried to contest one there, not even when a huge swath of the public was sneering at Congress for impeaching Clinton for prevaricating over a simple blow job.

I wonder why that is? Do you suppose everyone else in the world reads the Constitution and can plainly see that no court has any part of it?

Perjury is a crime.

 

[jmdrake]

You are purposely ignoring the fact that they only ruled that way about process disputes.
They have not ruled on unconstitutional impeachments without a criminal charge.

They ruled that they have no jurisdiction about whether or not an impeachment is unconstitutional!

 

[jmdrake]

Perjury is a crime.

Andrew Johnson was impeached over firing someone after Congress passed a law saying that person couldn't be fire. Sure he did't get removed, but neither did Clinton. If he had been removed by the Senate, Johnson would not have had the right to appeal to the Supreme Court because the constitution puts the full authority for impeachment in the Senate. They are the final arbiters! Anything else would undermine the separation of powers. The same separation of powers doctrine you are relying on to argue for presidential immunity prevents the Supreme Court from ruling on it. Immunity is a jurisdictional question. Having immunity doesn't mean an act isn't criminal but that the court doesn't have the authority to rule on that act. Impeachment is an essential check on abuse of power and that check belongs to the Senate, not the Court.

 

[Swordsmyth]

But it's not a crime.

Yes it is.

Misfeasance, nonfeasance, and malfeasance are types of failure to discharge public obligations existing by common law, custom, or statute.
Misfeasance is the willful inappropriate action or intentional incorrect action or advice.
https://en.wikipedia.org/wiki/Misfeasance


Misfeasance in public office is a cause of action in the civil courts of England and Wales and certain Commonwealth countries. It is an action against the holder of a public office, alleging in essence that the office-holder has misused or abused their power.[SUP][1][/SUP] The tort can be traced back to 1703 when Chief Justice Sir John Holt decided that a landowner could sue a police constable who deprived him of his right to vote (Ashby v White).[SUP][2][/SUP]
https://en.wikipedia.org/wiki/Misfeasance_in_public_office


It most certainly qualifies as a High Crime or Misdemeanor.

And it's a charge where exercising core Constitutional powers would not be one and cannot be made one according to the immunity ruling.

 

[acptulsa]

Perjury is a crime.

That didn't keep the Democrats from trying to get him off on any and every loophole. They're Democrats.

But they didn't get anywhere with the justices, who could only tell them...

They ruled that they have no jurisdiction about whether or not an impeachment is unconstitutional!

 

[jmdrake]

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors=/=Any or no reason.
It also doesn't mean core powers which the court just ruled cannot be made criminal.
It is absurd in the extreme to claim that a President can be impeached for using the powers the Constitution gives him.
You aren't making Congress a coequal branch, you are making it a supreme branch which can prevent the President from using his core Constitutional powers.
POTUS is not a Prime Minister serving at the whim of a parliament as its servant, he is an independently elected coequal branch of government.

Drunkenness is Misfeasance.

No. It's absurd in the extreme to claim that the privilege of immunity that keeps someone from being criminally prosecuted also prevents that person from being removed from office. Republicans know this. Biden cannot be prosecuted for inaction on the border but he could be impeached over that. The 2/3rds requirement means he absolutely wouldn't be removed for it.

 

[Swordsmyth]

Andrew Johnson was impeached over firing someone after Congress passed a law saying that person couldn't be fire. Sure he did't get removed, but neither did Clinton. If he had been removed by the Senate, Johnson would not have had the right to appeal to the Supreme Court because the constitution puts the full authority for impeachment in the Senate. They are the final arbiters! Anything else would undermine the separation of powers. The same separation of powers doctrine you are relying on to argue for presidential immunity prevents the Supreme Court from ruling on it. Immunity is a jurisdictional question. Having immunity doesn't mean an act isn't criminal but that the court doesn't have the authority to rule on that act. Impeachment is an essential check on abuse of power and that check belongs to the Senate, not the Court.

And SCOTUS just ruled Congress can't pass a law like that.
Johnson most certainly would have had the right to appeal to SCOTUS and if they ruled like SCOTUS just did they would have said the impeachment was unconsitutional.
The Constitution put the full authority of impeachment in the hands of Congress FOR HIGH CRIMES AND MISDEMEANORS, and SCOTUS just ruled that exercising core powers can't be made a crime by Congress.
Your position undermines the separation of powers by allowing Congress to restrict the President's Constitutional powers and to do it without an Amendment.
We are not discussing the immunity part of the ruling, we are discussing the part that says Congress can't criminalize the Constitutional powers of the President.
Impeachment FOR HIGH CRIMES AND MISDEMEANORS is an essential check that belongs to Congress, not impeachment for any or no reason, nor criminalizing the Constitutional powers of the other branches.

 

[Swordsmyth]

No. It's absurd in the extreme to claim that the privilege of immunity that keeps someone from being criminally prosecuted also prevents that person from being removed from office. Republicans know this. Biden cannot be prosecuted for inaction on the border but he could be impeached over that. The 2/3rds requirement means he absolutely wouldn't be removed for it.

Too bad I'm not claiming that, I'm only claiming that you can't remove from office for reasons not listed in the Constitution.

 

[acptulsa]

Impeachment is an essential check on abuse of power and that check belongs to the Senate, not the Court.

As well it should, as it's neither a criminal case which could land someone in jail nor a civil case petitioning for restitution, so it doesn't have anything to do with what the Judicial Branch was created to do. It's just firing someone.