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PaperclipPerfector  4mo ago (text post)   29975 thread views

Culture War Roundup for the week of July 1, 2024

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The precedent set with Ford pardoning Nixon certainly implies that in previous decades, a former President could be charged with crimes arising from conduct while they were in office.

The pardon, of course, mooted the question, but the answer from the 1970s was (seemingly) "you impeach him, and after he's out of office he can be prosecuted like anyone else".

  1. This case would not have immunized Nixon with respect to actions directly related to watergate (assuming Nixon was involved).

  2. I think impeachment and conviction remove any immunity this decision confers though I admit I haven’t read the case closely yet.

Definitely not on 2

Why do you say definitely not?

Because it's not anywhere in the decision that elements within the first 2 categories they laid out are somehow no longer eligible for immunity after an impeachment.

No it isn’t. But of course the decision doesn’t say the opposite either. I’m making a prediction based on reasonable arguments. This case isn’t a statute. It is much like a common law decision. So like a common law decision im saying change the facts and then think through “how should this change things based on what they said / their concerns.”

I believe impeachment and conviction obviates the concerns they have that led to granting immunity due to the super majority voting requirements for conviction. Thus I fully anticipate that the court would accept my position.

The court goes to some lengths to say that impeachment and conviction are a separate process with no bearing on criminal prosecution. I think it would have been a possible reasonable thing to say that impeachment and conviction remove immunity for the acts involved, but Roberts says "no".

It did so to say that the impeachment provision did not create the sole forum for prosecuting a president. That is, the impeachment provision precludes a stronger form of the immunity. Roberts therefore could be perfectly consistent to say impeachment and conviction further removes immunity without undermining the logic of his opinion.

Given that this whole thing is judicially crafted (taking into account the structure of the constitution) I think you’d have some votes to say impeachment removes (ie you’d have presumably at least three and likely more).

Importantly, Nixon was never charged with anything, so we don't know exactly what the pardon was intended to subvert -- but the underlying crime of the Watergate break-in was related to Nixon's reelection campaign, and reelection campaigns are not official duties of the president but are separated by statutes (isn't that correct?) that draw a clear-ish line between presidential duties and campaign activities. So isn't it likely that if Nixon had been charged, it would've been related to his political campaign -- using presidential powers in the service of his campaign? -- which would be categorically outside of his enumerated presidential duties.

I'm not sure this works. The opinion doesn't make a distinction based on duties, it makes a distinction based on the function. That is to say "using presidential powers" is squarely inside what is protected.

Somewhat counterintuitive in a way -- if a President breaks the law in his capacity a regular citizen, he is not immune. But he is immune if he not only breaks the law but does so via the exercise of any of his core presidential powers.

Nixon's actions were not really those of a candidate for office. By all accounts he did not know about and was not involved in the actual break in. Any actions he would have been charged for were squarely within the court's grant of immunity today. Most likely obstruction of justice for attempting to interfere in the DoJ's investigation of the break-in, including by firing several high level officials.

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