SCOTUS: No longer content with stacking, they're now dealing from the bottom of the deck

[Sacks 'n' Stuff]

On 7/1/2018 at 10:09 AM, nonniey said:

Just tradition and politics. Are you sure you want to go down that road?  Ya'll were pretty sure you wanted to go down the road of the nuclear option on filibusters and look how that turned out.  This is another one of those be careful what you wish for situations.

Yes, well. Let's not pretend that the reason they went that route isn't because the GOP held a meeting as Obama was being sworn in and made a pact that the President of the United States would not have one accomplishment during his time in office, or that they didn't then abuse the filibuster as a tool of political obstruction with no regard for the best interest of the nation or its citizens, blocking 76 of Obama's judicial nominees when in the entire history of the country, only 68 had ever been blocked before.

 

Of course, the GOP decided to abuse the new rule as well so... Yeah, do you really want to go down that route? You can try to prevent us from exploiting the loopholes but we're just going to find new ones since we've abandoned any sense of ethics or desire to to preserve a functioning democracy.

22 hours ago, twa said:

scared of the voters?....what kind of ship are we running here?

The kind where you abandon all conservative principles and bend over for the brainless FOXNews mouth-breathers because your self-interests take precedent over the good of the country.

Edited July 2, 2018 by Sacks 'n' Stuff

[RedskinsFan44]

5 hours ago, nonniey said:

Not really once it gets in the way of actually passing any legislation it is gone.

I suspect that McConnell realizes that the pendulum swings back and forth. 

My bet is 2020 you're looking at D control of both houses. It would suck to not be able to obstruct, amiright?

[nonniey]

5 hours ago, RedskinsFan44 said:

I suspect that McConnell realizes that the pendulum swings back and forth. 

My bet is 2020 you're looking at D control of both houses. It would suck to not be able to obstruct, amiright?

We've been there since 2013. In that the minute that the filibuster actually is the tool used to obstruct it will be gone. McConnel I'm sure does realize that but Reid didn't, 

Edited July 2, 2018 by nonniey

[DogofWar1]

19 hours ago, DogofWar1 said:

And yes, its ridiculous for a Pres to be Pres while behind bars, but its actually the least ridiculous outcome from the perspective of having the POTUS faithfully execute the laws of the USA.

 

And least ridiculous option should win.

This warrants further discussion, especially since the question may be tested.

 

But as I started writing I realized this is gonna be a long one.  So this is Part I: Laying the Foundation.  Part two will look at each step the President can be subjected to.

 

So there are a number of potential phases of criminal prosecution that can happen; investigation, indictment, trial, conviction, sentencing, punishment.

 

Investigation, indictment, and trial are pretty self-explanatory.

 

However to differentiate trial and conviction, sonce presumably the former leads to the latter, I'm talking about whether a deferral of a finding of guilt can occur while the President is sitting.

 

Similarly, a person can be sentenced but receive some delay in punishment.

 

So the question is, what can and cannot be imposed upon a sitting President.

 

Investigation is easy.  Plenty of Presidents have been investigated, so that's not a problem.

 

The primary argument against each of the remaining steps is that it would interfere with the powers and duties of the Presidency.

 

But here's where I have a problem with that.

 

The powers and duties of the President are related to the faithful execution of the laws of the United States.

 

My thought is that if an investigation of a President reaches the point that an indictment could issue, then we have a conflict with regards to the ability of the President to faithfully execute the laws of the US, at least if the President is aware of the sufficiency of the evidence.  I'll return to this in a minute.

 

However, that is perhaps overbroad so we'll take a quick detour into what kinds of crimes Presidents can commit that should be problematic.

 

I think the obvious answer is that crimes committed in a bona fide attempt to carry out the duties of the presidency are omitted.

 

I would also omit misdemeanors but we sort of hit a snag there.  While I think most of us can agree that misdemeanors are minor enough to omit from the list of charged offenses for which we can assume a President no longer can faithfully execute their duties, that is more of a value judgment, not anything written hard and fast in law.  In fairness, none of this really is written in law anywhere but it's one layer deeper to analyze WHICH crimes can cause problems for the President than just to answer whether ANY crimes can cause problems for the President.  Essentially, I would argue for prosecutorial discretion on these matters to a point, though naturally prosecutorial discretion is rarely enshrined in law.

 

Anyways, that leaves us with felonies committed outside of a bona fide effort to faithfully execute the laws of the US.  That would mean felonies committed prior to becoming President are fair game, as would felonies committed while in office that are not tied to the above duties of POTUS.

 

So we return to the question of why does a President cease to be able to faithfully execute the duties of the office when faced with knowledge that he could be indicted with a felony?

 

Primarily, it comes down to conflicts.  A first term President, if insulated from the criminal process while POTUS, will undoubtedly be seeking the office not because they seek to do the most good, but to protect themselves.  A POTUS might push for criminal justice reform to protect themselves from prosecution by making their own crimes no longer crimes, or misdemeanors.  Maybe the people they seek to appoint are those who will be lenient or assist them in avoiding punishment.

 

In any event, once a person knows they are likely going to be indicted at some future point, their actions change, and that includes POTUS, probably more than anyone.

 

Obviously we have seen this in action with Trump.  Firing Yates, Comey, telling various people to "stay strong," dictating the statement on the Trump tower meeting with Don Jr.

 

Now yes, Congress is supposed to play a role here, and if they do a lot of the problems evaporate.

 

But ultimately Congress' role is political in nature, and therein lies the rub.

 

Congress, if they do not act politically, should not bar the justice department from acting, criminally/legally.

 

Indeed, and we'll see this as we push forward, DOJ not acting could be used as an excuse for Congress to not act ("he hasn't been convicted in a court of law, so we won't impeach") but if DOJ CAN'T act until Congress acts, we find ourselves in a chicken-egg loop.

 

Which is stupid.

 

And nothing can compel Congress to act on impeachment.

 

This is where I will stress that just because a President is being subjected to part/all of the criminal justice system, does not mean he is removed from office.

 

This is really important to keep in mind because it means that the power of impeachment stays with Congress, and my whole point is that the argument that the President should be exempt from the criminal justice system because it interferes with his duties is mooted because ANY real possibility of indictment, regardless of when that indictment is allowed to come, interferes with the President being able to perform their duties.

 

Thus it is not the specific act of subjecting a sitting President to the justice system that impairs them, but the fact that a sitting President CAN, EVENTUALLY, be subjected that impairs them.

 

And obviously becoming President does not wipe one's criminal slate clean, nor should it.

 

Alright, I think we've laid some good foundation.

 

And thus ends part I.

[visionary]

 

[DogofWar1]

P.S. to part I

 

Process crimes.  Perjury, obstruction, etc.

 

As with all of this I'm perfectly open to other thoughts.  I'm trying my best to do this analysis reasonably but other thoughts are welcome.

 

Process crimes present a bit of an issue, as to where they should fall on the "can the sitting president face consequences for them."

 

I start this from the premise that the President cannot face the justice system for non-crimes, misdemeanors, or felonies committed in a bona fide attempt to faithfully execute the laws of the US (felus, for short).  Alternatively, he can face punishment for felonies not tied to felus.

 

I separate them into four categories of process crimes then:

- pursuant to non-crime

- pursuant to misdemeanor

- pursuant to felony, not felus

- pursuant to felony, felus

 

I think the best analysis is of the first three, and the fourth needs a bit of extra analysis because what is within a bona fide attempt at felus?

 

With regards to first three, I think we can neatly divide them into "sitting President is subject to consequences or not".

 

If we believe that no felus issues exist on non-crimes and misdemeanors, then we can reasonably say that felus issues should not be created from process crimes.  This doesn't mean they escape prosecution forever, but rather only so long as they are POTUS.  Could this have a chilling effect on investigations?  Maybe.  But I think on non-crimes and misdemeanors the balance would fall in favor of the chilling effect compared to interference with felus.

 

Felonies, on the other hand, if we assume that the mere commission of a non-attempt-to-felus felony will interfere with felus, has no such chilling effect nor is there a reason to delay process felonies.  The underlying act is criminal and able to be pursued at least to indictment, so process crimes following up until the same point as the underlying charge doesn't change things.  Indeed, to not have that might incentivise process crimes, as one can protect against greater punishments while escaping consequences for process crimes until after leaving office, which, on sufficiently large felonies, is a great trade-off.

 

Now what about felonies committed in a bona fide attempt (bfa) to felus?

 

Well we have to step back and say what is or isn't under this bfa2felus standard.

 

That's a toughie, but I think I worked out a reasonable procedure that should be minimally invasive the President.

 

1st.  And investigation uncovers felony criminal activity committed by the President while in office.

2nd.  DoJ must submit that to a grand jury and seal the indictment.

3rd.  President is made aware of indictment and given opportunity to respond with whether he will be mounting a bfa2felus defense.  (All of this is done secretly, btw)

4th.  If so, new prosecutors, who would not prosecute the President if not found bfa2felus, are appointed to handle motion.

5th.  Judge hears motion and determines if bfa2felus.  If so, President is immune, indictment goes away.  If not, indictment can go forward (as far as allowed).

 

By using new prosecutors the President is protected from making statements that, should judge rule that it wasn't bfa2felus, could not be used against POTUS.

 

So what standard should a President meet for bfa2felus?

 

I think they must demonstrate two things.  1.  An interest of the United States.  2.  That it was within the President's powers or duties.

 

Ordering a potentially illegal drone strike to kill a known terrorist?  Probably fine.  Helping Russians launder money thru Mar-A-Lago?  Not so fine.

 

By setting the standard as the two above, and having the court reasonably broadly interpret the two, we can most avoid the chilling effect on Presidential power, as after all it would be basically a similar standard for ANY act of the President with regards to raw constitutionality.  (For example, I considered a potential 3rd prong related to the reasonableness of the illegal act vs. legal alternatives, but I felt like forcing a President to engage in that analysis likely infringed too much on their powers)

 

 

HOWEVER, such an analysis for process crimes is perhaps moot, because, in my view, process crimes relating to bfa2felus crimes can still move forward.

 

Why?  Because if the President legitimately believes the act was bfa2felus, then there is no need to engage in process crimes (perjury, obstruction) because there is no underlying crime.  If the President, in the alternative, doesn't believe its bfa2felus (regardless of whether they claim it), then they definitely should not be engaging in process crimes.

 

Now sure, if the President is not certain, there can be a rub, and so essentially two things can happen to help.  1. DoJ should, at first knowledge of a felony criminal act that they determine may not be bfa2felus, ought to immediately seek bfa2felus review, IF they seek to bring process crimes.  If an unreasonable delay occurs (for example, investigating other charges and matters), process crimes against POTUS ought to be waived, UNLESS DoJ can show POTUS knew or should have known that action was not bfa2felus.  2.  POTUS may request bfa2felus review (not from a judge but from some independent advisor, think ethics advisor style of person) prior to an action, or after an action before they may accidentally commit a process crime.  Just as a President may request advisors opine on the constitutionality of an action, similarly the legality of an action may be examined too.  This also helps insulate POTUS because if an independent advisor has stated an action was bfa2felus that strongly bolsters their case should an official review come later.

 

But the point is that process crimes for felonies are not reasonable, pretty much regardless of the circumstances of the felony.

 

That being said, there is plenty of potential debate on process crimes, especially in cases of bfa2felus, to be had.

 

Anyways, thus ends part 1.5.

[visionary]

 

[visionary]

 

[Busch1724]

...and yet they still don't know they voted against their interests...but guns, that's right. 

[Zguy28]

And then there were three...

 

https://www.nbcnews.com/politics/politics-news/trump-narrows-supreme-court-short-list-top-3-contenders-emerge-n888981

 

Quote

Those candidates are appeals court judges Brett Kavanaugh, Raymond Kethledge and Amy Coney Barrett

 

[Kilmer17]

It's going to be Barrett.

 

And it's going to create a fantastic **** storm.

[Zguy28]

4 minutes ago, Kilmer17 said:

It's going to be Barrett.

 

And it's going to create a fantastic **** storm.

"the perfect storm"

Woman, young, Roman Catholic mother of seven, Scalia's former clerk.

 

Kavanaugh is more moderate it seems. Knowing Trump, he will go with most offensive to Dems, then when it doesn't go well, falls back to Kavanaugh (his real choice?) and blames Dems at a rally and on Twitter. Art of the deal. Hard for him to lose.

 

 

[visionary]

I don’t trust Barret at all.  The others are at least qualified and experienced enough for the job, but Trump’s been moving her up so fast that it makes me nervous.  Also not sure about that secretive group she’s in.  

 

But it wouldn’t surpise me too much if Trump pulls a twist and whips out some other judge just to spite the media or to make people talk.

[Zguy28]

18 minutes ago, visionary said:

I don’t trust Barret at all.  The others are at least qualified and experienced enough for the job, but Trump’s been moving her up so fast that it makes me nervous.  Also not sure about that secretive group she’s in.  

 

But it wouldn’t surpise me too much if Trump pulls a twist and whips out some other judge just to spite the media or to make people talk.

What secretive group? I had not heard this.

 

EDIT: found the info on "People of Praise." I'm a Reformed Baptist, so not real big on Roman Catholicism, but fearing that is like the people in 1960 fearing the Pope would control Jack Kennedy IMHO.

 

https://heavy.com/news/2018/07/amy-coney-barrett-family-parents-father/

Edited July 5, 2018 by Zguy28

[The Evil Genius]

It's not a secret group..and it's not really a cult..it does seem to put a lot of emphasis on male patriarchy.

 

People of Praise.

 

https://www.bustle.com/p/what-is-people-of-praise-amy-coney-barretts-reported-religious-affiliation-raises-eyebrows-9669937

Edited July 5, 2018 by The Evil Genius

[PF Chang]

9 minutes ago, Zguy28 said:

What secretive group? I had not heard this.

 

Probably referring to "People of Praise." I don't know much about it other than that the women leaders/advisers are called "handmaids." 

[The Evil Genius]

We are about to have 4 out of 9 on SCOTUS be appointed by Presidents who couldn't even win the plurality of the vote.

 

We're ****ed.

Edited July 5, 2018 by The Evil Genius

[visionary]

20 minutes ago, Zguy28 said:

What secretive group? I had not heard this.

 

EDIT: found the info on "People of Praise." I'm a Reformed Baptist, so not real big on Roman Catholicism, but fearing that is like the people in 1960 fearing the Pope would control Jack Kennedy IMHO.

 

https://heavy.com/news/2018/07/amy-coney-barrett-family-parents-father/

I don't know much about it, but from the very brief info I've seen about it I haven't seen anything too bad yet.  I'm more worried about the timing and how fast she's moving up from position to position.  I remember noticing her when reading through Trump's nominees the last time she was bumped up.

 

 

 

 

 

 

 

Edited July 5, 2018 by visionary

[twa]

They won the plurality of the electoral votes 

[Zguy28]

Just now, PF Chang said:

Probably referring to "People of Praise." I don't know much about it other than that the women leaders/advisers are called "handmaids." 

Apparently that's just based on Mary's (mother of Jesus) quote in Luke, which originally used handmaid. It just means humble servant and I think in the context of this group it seems to mean servant-leader. Being a servant-leader is not a bad thing. I wish our President was one. As much as I disagreed with the previous two admins, at least Bush and Obama tried to be that according to their belief.

[The Evil Genius]

20 minutes ago, twa said:

They won the plurality of the electoral votes 

 

No ****. Edit..actually that's stupid. They won a majority of the electoral votes. Not a plurality. 

 

Too bad she wouldn't be controlled by the Pope. Gays would be safe and the poor and the environment would be of great concern to her.

Edited July 5, 2018 by The Evil Genius

[Zguy28]

3 minutes ago, The Evil Genius said:

 

No ****. 

 

Too bad she wouldn't be controlled by the Pope. Gays would be safe and the poor and the environment would be of great concern to her.

Besides your prejudiced conservative stereotyping, is there evidence to support your implying its not a concern to her?

[The Evil Genius]

5 minutes ago, Zguy28 said:

Besides your prejudiced conservative stereotyping, is there evidence to support your implying its not a concern to her?

 

Because it's not one ( a concern) for the Trump GOP? And I suspect he will nominate someone close to his ideology since that's all he has done (employs his people) for 18+ months.

 

Edit..that said I have no idea if Barrett cares about either. I was just saying that the current head of the Catholic Church is a bleeding heart liberal (compared to American neocons) and is pro science. ?

Edited July 5, 2018 by The Evil Genius

[PF Chang]

34 minutes ago, Zguy28 said:

Apparently that's just based on Mary's (mother of Jesus) quote in Luke, which originally used handmaid. It just means humble servant and I think in the context of this group it seems to mean servant-leader. Being a servant-leader is not a bad thing. I wish our President was one. As much as I disagreed with the previous two admins, at least Bush and Obama tried to be that according to their belief.

 

Agreed, I don't think it's an issue. Expecting plenty of dystopian jokes though. 

[WelshSkinsFan]

On ‎7‎/‎1‎/‎2018 at 6:56 PM, RedskinsFan44 said:

I suspect that McConnell realizes that the pendulum swings back and forth. 

My bet is 2020 you're looking at D control of both houses. It would suck to not be able to obstruct, amiright?

 

I know I am responding late to this but honestly I think you are being way too optimistic.  Gerrymandering has been legalized by SCOTUS and the likelihood of the Dems winning anything in the near future is slim to non existant.  The most likely thing to happen in 2020 is a constitutional amendment abolishing term limits for Presidents followed by some other legislation to make the title of Supreme Lead...I mean President hereditary.