Above the law


Can we all agree that this is totally antithetical to the principles of a free Republic?

A lawyer for Donald Trump argued in federal court on Wednesday that the president could shoot someone on 5th Avenue in New York City and not be prosecuted.

No one can be above the law. Trump wants to be an autocrat, like his heroes Putin, Kim, and Erdogan. This alone is sufficient cause to impeach him, kick him out of office, and toss his orange ass into jail.

Comments

  1. christoph says

    Are you sure a lawyer argued that in court? I do remember Trump bragging that he was so popular he could shoot someone and not be prosecuted, but didn’t hear about it mentioned in a courtroom.

  2. Akira MacKenzie says

    A lawyer for Donald Trump argued in federal court on Wednesday that the president could shoot someone on 5th Avenue in New York City and not be prosecuted.

    But Obama needed to be impeached for wearing a tan suit.

  3. brucegee1962 says

    Here’s the argument for “the president can’t be prosecuted” as I heard it:
    Suppose the president straight-up absolutely shoots somebody, in cold blood.
    First of all, how does he even get arrested? If the local cops show up, what is the secret service supposed to do? Are they going to stand by and let the president get hauled off to jail?
    OK, let’s say they do, so now he’s in jail. If he isn’t above the law, then he gets one phone call. Suppose, at this point, that China decides to invade Taiwan. Who is actually in charge of the military? Who is empowered to give commands?
    Or maybe he makes bail, but the trial lasts for months. During this time, presumably his defense will take 100% of his attention. Do we even have a president during this time?
    Now he’s been convicted, so off to prison he goes. He’s put in an orange jumpsuit and assigned a cell. He is still the president. Is he going to have cabinet meetings in his cell?
    There are plenty of other reasons to impeach, then lock him up if he’s committed a crime.

  4. Chris J says

    OK, let’s say they do, so now he’s in jail. If he isn’t above the law, then he gets one phone call. Suppose, at this point, that China decides to invade Taiwan. Who is actually in charge of the military? Who is empowered to give commands?

    There’s a standard order of succession for situations like the President suddenly having a heart attack or falling into a coma or being declared “unfit for office.” No reason to think imprisonment wouldn’t lead to the same thing.

    There are plenty of other reasons to impeach, then lock him up if he’s committed a crime.

    I’d be more sympathetic to this argument if the hypothetical wasn’t “the President is literally shooting people dead in broad daylight.” Being arrested isn’t just a punishment for bad behavior, it’s also a way to get someone to stop shooting people. If the President just snaps one day and starts mass-killing, I’m pretty sure the proper order of things is arrest and immediate declaration of his unfitness for office, moving the chain of command to the next person in the order of succession.

  5. PaulBC says

    A lot of differing legal opinions in this Vox article from May. This view seems reasonable to me:

    There is nothing in the Constitution that prevents a sitting president from being indicted. There is nothing in Supreme Court opinions that prevents a sitting president from being indicted. All we have is Department of Justice policy based largely on concerns over separation of powers.

    On the other hand, there is an important principle guiding our legal system that no person is above the law. That principle is fundamentally undercut by the policy that a sitting president is immune from indictment.

    Murder aside, if I was president, could I just walk into a 7-11 every day, take a big candy bar and not pay and walk out and say “Ha ha, I’m the president.”? That might be more fun in some ways. I suspect there’d be a clearer case that I had demanded a bribe, which is mentioned explicitly as an impeachable offense. If I commit murder out of sheer cussedness, that’s less clear-cut. It’s not something you expect a president to do.

    Then again, the constitution really doesn’t say the president is immune from prosecution. That idea follows from the difficulty in figuring out who can do it. The DOJ is kind of a non-starter since it’s part of the executive branch. There is a reason impeachment falls on congress, and unfortunately we have a senate that is more interested in propping up their party than anything else.

  6. says

    @PaulBC: Stealing candy bars and shooting people are state crimes. And the litigation is about a Manhattan DA investigation, not a federal crime. There are certainly issues about states prosecuting presidents, but they’re different.

  7. Rich Woods says

    @Chris J #9:

    If the President just snaps one day and starts mass-killing

    Then you can be sure he’ll get re-elected in 2004.

  8. tulle says

    “Who is actually in charge of the military? Who is empowered to give commands?”

    It is so sad we do not have a document that can answer this question /s

  9. cartomancer says

    It’s clearly not the most relevant thing about this, but it struck me recently that calling Trump orange isn’t the best mode of insult.

    Clearly he wants to be thought of as that colour, given that he has it painted inexpertly onto his pasty, saggy, liver-spotted old man pelt every morning. Probably as an attempt to simulate what in his mind might be considered a healthy look.

    So how about we stop calling him orange and start pointing out that, underneath it all, he’s the same pale cream colour as his disgusting puffy eye bags?

  10. PaulBC says

    cartomancer@15

    I think what he most fears is being called “old”, which he is (and there’s no shame in that by itself; we’ll all be old one day if we’re so lucky).

    Trump is a fat old man who was never a deep thinker in the first place, but has shown serious evidence of cognitive decline either through age or just the laziness of unchecked power. He once ribbed Jeb Bush as “low energy” but Trump’s idea of energy is playing golf and tweeting out the first thing that pops into his addled brain.

    He thinks he is the glamorous “dealmaker” of the 80s, which he never was in the first place (that was an invention of his ghostwriter). I agree that calling him “orange” is kind of besides the point. What I found most remarkable about the 2016 campaign was the Trump’s advanced age was not even treated as salient. You can do important work after 70, and you can compensate for physical decline, but you will never have the raw stamina or mental agility you once had. I’m in my mid-50s and I know what I’ve lost already and where I’m relying more on experience than new understanding. Trump is old. Old in mind, body, and belief.

  11. GerrardOfTitanServer says

    I am continually amazed how almost everyone of the legal profession believes this historical nonsense that criminal prosecution is an inherent power of the executive branch, and moreover use this false claim as a crucial premise in their argument that a sitting president cannot be arrested or criminally charged.

    I mean – hell – there is more in the actual constitution to protect a sitting house rep from being arrested for stealing candy (see article 1, section 6), than there is for a sitting president to be similarly protected.

    For further reading:

    Stephanie A. Dangel, “Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers’ Intent”, 99Yale L.J.(1990). Available at: https://digitalcommons.law.yale.edu/ylj/vol99/iss5/3

    And also:

    Seton Hall Constitutional L.J. 2001, 685
    ARE COPS CONSTITUTIONAL?
    Roger Roots*
    https://www.constitution.org/lrev/roots/cops.htm

  12. says

    Quoted by PaulBC # 10:

    All we have is Department of Justice policy based largely on concerns over separation of powers.

    So, the executive branch decides that the executive branch is immune from the judicial branch.

    What was that thing about the separation of powers? Checks and balances? Something like that?
    I learned that much from just watching American sitcoms. How could actual Americans not see what’s happening?

  13. says

    When I heard about this earlier the thought came to mind that Trump could be shot “resisting arrest” if he actually did go out and shoot someone.

  14. says

    PaulBC (#10) –
    In your quoted text:

    There is nothing in the Constitution that prevents a sitting president from being indicted. There is nothing in Supreme Court opinions that prevents a sitting president from being indicted.

    There is in Italy, which is why Berlusconi desperately clung onto power. And look at Joe Arpaio, desperately trying to get his sheriff’s job again – because now that he’s out, his crimes can be investigated.

    Cheetolini keeps using songs without permission. Someone should play this one around him:

    “But you can reach the top of your profession
    If you become the leader of the land
    For murder is the sport of the elected
    And you don’t need to lift a finger of your hand
    Because it’s murder by numbers, one, two, three
    It’s as easy to learn as your ABC’s”

    The Police, “Murder By Numbers”

  15. brucegee1962 says

    @9 Chris J If the President just snaps one day and starts mass-killing, I’m pretty sure the proper order of things is arrest and immediate declaration of his unfitness for office, moving the chain of command to the next person in the order of succession.

    Nice lack of agency there. Immediate declaration by whom? The VP? The Chief Justice? The ghost of James Madison?

    @11 Brian Pansky “Who would take the president’s job” is called “the vice president”.

    Is he just supposed to call a press conference and say “OK, I’m president now”? Maybe provisionally, until the cabinet can get together and invoke the 25th amendment. Hopefully that can be done quickly. But what if half the cabinet thinks that presidents who go around shooting people are hunky-dory — who’s in charge then with the president in lockup?

    @14 Tulle
    “Who is actually in charge of the military? Who is empowered to give commands?”

    It is so sad we do not have a document that can answer this question /s

    This is exactly my point. The constitution provides two methods of removing a president from office: impeachment and the twenty-fifth amendment. Until one of those two methods is accomplished successfully, he is still in charge..

  16. consciousness razor says

    brucegee1962:

    Nice lack of agency there. Immediate declaration by whom? The VP? The Chief Justice? The ghost of James Madison?

    You seem to have either not read or not understood the relevant parts of the law. Let’s work on that. (I’ll use bold to highlight a few things.)
    Article II, Section 1, Clause 6:

    In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

    Amendment XXV, Section 4:

    Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
    Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

    … And there is law to handle the order of succession beyond the VP.
    Congress doesn’t only have impeachment powers. The basic concept of our system is that Congress provides the executive with laws to execute. The president (head of the executive branch) is not a monarch and does not have such powers, but is limited to carrying out the laws Congress makes and fulfilling the (clause 8) oath of office to preserve/protect/defend the Constitution itself.
    If the president isn’t doing that for whatever reason, an immediate decision to remove them from office may come from the cabinet (as A25 says – note that Congress, once again, is what made that law.)
    Whatever immediately happens, Congress ultimately decides whether that is legitimate. (If they decide it’s not, the president would likely remove the offending cabinet members.) That is because the power to make law is theirs, this is a question of law, there is “rule of law” if the Constitution is followed, and that more or less defines “legitimacy” in this context. Of course, Congress can decide on its own, via impeachment (Section 4), without regard to anything the cabinet wants or tries to do, or anyone else for that matter.

  17. tacitus says

    As I understand it, the main “novelty” being argued by Trump’s lawyers is that not only can a president not be indicted, they can’t even be investigated, which (conveniently) means the SDNY has no power to force Trump to hand over anything related to any investigations they might have opened on him.

    They are arguing that he must be impeached and removed from office before any other investigations can even start.

    Trump’s not worried about indictment here, he’s worried about his financial crimes coming to light before the next election, so the investigation cannot be allowed to continue.

  18. Ridana says

    Since the Supreme Court already ruled that Paula Jones’ civil harassment suit could proceed while Clinton was still in office, isn’t this already settled law? If a civil suit can go forward, with all the investigative discovery that entails, how could a criminal suit be exempt from investigation?

  19. GerrardOfTitanServer says

    To Ridana
    This is one of their arguments: Anyone can start and do civil lawsuits in civil court, but only government executive officers can start and do criminal prosecutions. All executive officers report to the president, and are extensions of the power of the president. It’s absurd for the president to prosecute himself. Alternatively, it’s not obstruction of justice for the president to simply direct his underlying to not prosecute the president.

    PS: Another one of their arguments: It would result in bad outcomes if we allowed the president to be criminally prosecuted and put in jail by just any (federal) prosecutor. Therefore, it’s not allowed, and only the congress can decide if and when the president should be removed from office for a crime.

    This argument doesn’t really distinguish between civil suits and criminal prosecutions though.

  20. PaulBC says

    Ridana@24

    Uh, because Clinton was a Democrat and Trump is a Republican with the full backing of the Republican Senate? I mean, just guessing here, but I did not invent the acronym IOKIYAR.

  21. PaulBC says

    GerrardOfTitanServer@25

    I suppose it’s useful to keep track of the arguments they’re going to use. But I have a sneaking suspicion that they start with a conclusion and then back-fit the argument.

  22. GerrardOfTitanServer says

    To PaulBC
    Oh, of course. As I argued above, the premise “criminal prosecutions are a core executive power” is just false for anyone who actually bothers to do their research, but it’s a convenient premise to reach their desired conclusion.

  23. wzrd1 says

    What really floored me today was that circus stunt of Republicans invading the House SCIF, worse, snapping pictures and shooting video with their cell phones.
    If I invaded a SCIF, with or without a phone, I’d be sitting in solitary confinement until my trial, then in solitary confinement after conviction. Bringing a cell phone into any classified documentation and communications facility is expressly forbidden – government wide. Snapping pictures and shooting video within said facility is also expressly forbidden – indeed, the lot of the ones who did make images of the inside of the facility while it was in operation should have their devices confiscated and destroyed.
    Those two dozen representatives should be expelled from the House and their security clearances revoked with prejudice.

    Trump has federal immunity from prosecution and it’s dicey if a state could prosecute him while he is in office. But, an investigation is not a trial, finding of facts to determine if prosecution is warranted most certainly is allowed. There is no right of rebuttal in any investigation or grand jury session, there never has been, there never shall be. Cross examination of a witness occurs in a trial, rebuttal occurs in a trial.
    So, every current GOP objection is nonsense.

  24. brucegee1962 says

    @22 consciousness razor

    Perhaps I didn’t make my point clearly enough — none of what you quoted seemed relevant to what I was trying to say.
    When people like PZ say “No one should be above the law,” what I interpret them to mean is “Even though the Senate majority are a bunch of cravens and the cabinet is supine, somehow the judiciary ought to be able to save us from an obviously criminal president.” To which I was responding “I don’t think so” — or at least, there doesn’t seem to be anything in the constitution to support that idea. I don’t think you presented anything to contradict that. In other words, I think Mueller was right that the president couldn’t be indicted. If neither of the bodies given the power to remove the president is willing to do so, then we’re pretty much hosed.

    There’s a larger point to be made here. I think that the biggest problem this country faces right now isn’t Donald Trump — it’s his voters. Around 30-35% of the electorate seems honestly enamored with the guy and everything he does, and even if we manage to get rid of the guy, those voters will still be around.

    There are only two things we can do to counter them. One would be if the Republican leadership started actually acting like leaders and taking a genuine moral stance. Lots of luck with that one.

    The other would be to hand the Republicans such a major trouncing that these people scurry back to whatever holes they crawled out of. I hope there are enough good people in this country to do that.

    Otherwise, like I said — hosed.

  25. says

    An explanation of the “no indictment of a sitting President” theory, with two preliminary notes. First: this is a long-standing, serious lacuna in the Constitution — late-life letters from Madison, Jefferson, and at least a couple of other Founders basically said “oops, we didn’t do that very well.” Second: GarrardOfTitanServer @17 cites two law-review articles regarding whether “policing” is an “executive function”; that a legal academic can make that argument with a straight face only proves the lack of shame in the profession and especially legal academia.

    Policing and law enforcement is an executive function.* That is so as much by default as anything else — unlike Continental Europe (either now or in the 18th century), it is clearly not a judicial function, and absence as a positive power places it outside the legislative branch. That leaves, in US usage, the executive branch (which, unlike parliamentary systems, draws a rather strict line between “faithful execution of the laws” and “legislation”; those of you in the UK snickering about quangos can just consider the current Brexit problem while we laugh at you). So, certainly at the federal level, a “law enforcement function” is under the ultimate supervision of the President, since with the singular exception of the Vice President every single member of the executive branch is appointed by a President and serves at the President’s pleasure. Even those appointed for a set term of years do so, if you look carefully at what constitutes cause for dismissal.

    Extending to a state investigation, however, is a real reach. It would require reading some never-considered side effects of the Guarantee Clause of Art. IV § 4, which requires that the federal government guarantee to each state “a republican form of government”… and the only example thereof in the late 1780s was the one being established by the Constitution, meaning strict three-part government with checks and balances at a miniumum. Throw in the Supremacy Clause and the power of the national government to nationalize militias and law enforcement personnel (which are largely statutory, not constitutional), and there’s at least a passes-the-laugh-test basis for the assertion that no sitting President may be indicted by criminal prosecutors.

    Of course, there isn’t an indictment at issue here, is there? Remember, in New York (and several other states), investigations of civil tax offenses may be handled by offices that otherwise “do” criminal work — because so many tax investigations are at minimum “inextricably intertwined” with criminal matters and investigations. At this stage, the only thing at issue is a subpoena duces tecum (demand to produce documents). Unless, that is, the Orange One has such a guilty conscience concerning what those documents might reveal that he thinks they create a serious risk of criminal liability… never mind, that would require him to have a conscience of some kind in the first place.

    N.B. In my first career, I was an executive-branch official with significant “policing” and “law enforcement” responsibilities; those are part of a C.O.’s job. This quandary is not new to me.

  26. GerrardOfTitanServer says

    To Jaws
    I’m not clear regarding your exact position regarding your response to me and my articles. Let me try to clear that up with a simple question. At least regarding State prosecutions – do you accept the evidence that I’ve provided which is that the majority of criminal prosecutions under State laws in all of the States circa 1800 were done by private persons in their own private capacity, typically the victim or the family of the victim (but also by other private organizations)? It seems indisputable to me that at the time of the founding in America, criminal prosecution was not an inherent executive power because it wasn’t a governmental power at all. Criminal prosecution was a power of every person, just like doing a civil lawsuit was a power of every person. Do you accept this?

  27. GerrardOfTitanServer says

    PS:

    Throw in the Supremacy Clause and the power of the national government to nationalize militias and law enforcement personnel (which are largely statutory, not constitutional), and there’s at least a passes-the-laugh-test basis for the assertion that no sitting President may be indicted by criminal prosecutors.

    Based on this, I think that your understanding of criminal justice and law enforcement in America circa 1800 is grossly flawed, and it would do you very well to read both articles. Asserting that “law enforcement” is an exclusive right of the government is wrong – at least in the sense that I understand what you meant to communicate. In particular, the idea of cops with special police powers was anathema to the founders, and that is well supported by the available evidence. For example, regarding arrest, circa 1800 in America, there was only citizen’s arrest, and arrest by warrant. There was no special power of “arrest by cop” beyond this, and such a power would have run afoul of the general warrant prohibition of the fourth amendment.

  28. GerrardOfTitanServer says

    PPS:
    Meant to write “typically by the victim or an attorney chosen and hired by the victim”.

  29. says

    wzrd1@#29:
    What really floored me today was that circus stunt of Republicans invading the House SCIF, worse, snapping pictures and shooting video with their cell phones.

    An old buddy of mine was on the white house communications detail under Reagan. He sent me a link to that story this afternoon when it broke and his comment was: “LOL I always wanted to shoot a bunch of senators.”

  30. consciousness razor says

    brucegee1962, #31:

    Perhaps I didn’t make my point clearly enough — none of what you quoted seemed relevant to what I was trying to say.
    When people like PZ say “No one should be above the law,” what I interpret them to mean is “Even though the Senate majority are a bunch of cravens and the cabinet is supine, somehow the judiciary ought to be able to save us from an obviously criminal president.” To which I was responding “I don’t think so” — or at least, there doesn’t seem to be anything in the constitution to support that idea.

    That’s a very elaborate interpretation of a statement which presumably means many different things to many different people. If it’s just your own invention, you’re just arguing with yourself, and you don’t need to quote anybody else to do that.
    And no, this wasn’t clear. That isn’t what you were saying in #21. You quoted Chris J from #9:

    If the President just snaps one day and starts mass-killing, I’m pretty sure the proper order of things is arrest and immediate declaration of his unfitness for office, moving the chain of command to the next person in the order of succession.

    In response to that quote, this is what you said:

    Nice lack of agency there. Immediate declaration by whom? The VP? The Chief Justice? The ghost of James Madison?

    Now you tell me I’m supposed to read that as saying that you don’t believe the craven Senators and supine Cabinet will do it. But you’re also not saying that what you predict about their behavior is the same thing as “the proper order of things” (what Chris J actually mentioned). Because that would just be silly.
    So, you only asked “questions” about the latter, which to me suggested you thought they had no good answer. But this was in order to say something cryptic about the former? I doubt that it was. I think you probably just misread Chris J or didn’t care about what they were saying.
    I mean, you could’ve said “yes indeed, there is a proper order of things like that, which isn’t a big mystery that may or may not involve Madison’s ghost, etc. And I predict the proper thing won’t happen, so we’re hosed.” That would’ve been much clearer, if that’s what you’re trying to say.

  31. Ishikiri says

    @Artor, #7:

    “There’s a lawyer who should be disbarred…”

    While outrageous sounding, it doesn’t seem to be a settled legal question. So I don’t think that lawyer could possibly face bar association sanction just for that. However, Pat Cipollone should almost certainly face disbarment for that insane letter he penned (or at least signed) and sent to the House over the impeachment inquiry, as should Rudy Giuliani for his various zany behavior.

  32. says

    GarrardOfTitanServer:

    I reject the validity and soundness — not to mention applicability — of the “research” you’ve described, and that appears in the two articles you cited. For one thing, it ignores two critical distinctions: Between felonious conduct with potential incarceration (always by the executive by not later than the 1740s in the English-speaking world) and misdemeanors and “mere” breaches of the peace (which were nonetheless majority government-handled by 1772, and virtually always in the major population centers); and when the purported offenses are against the government, such as tax evasion, which have been exclusively government and executive controlled since 1629 or thereabouts in the English-speaking world.

    And even that doesn’t reach the complex implications of the Fourteenth Amendment. Suffice it to say that “original practice originalism” fails against the Fourteenth Amendment under almost every circumstance… especially regarding anything relating to incarceration.

    My point was that the lawyer could make that incorrect argument with a straight face, because there is a tortured, internally-consistent-however-divorced-from-reality line of reasoning that could “justify” that reasoning when used to advance a specific client’s position in a specific instance. In terms of its relationship to reality, it’s not much better than the “sovereign citizen” nonsense, though… and there are multiple law journal articles out there in support of “sovereign citizen” exemption from income tax, too.

  33. GerrardOfTitanServer says

    felonious conduct with potential incarceration (always by the executive by not later than the 1740s in the English-speaking world) and misdemeanors and “mere” breaches of the peace (which were nonetheless majority government-handled by 1772, and virtually always in the major population centers);

    This is very interesting. I would like to know if I’m wrong. You also have some very specific dates in mind, which makes me think that you already have particular evidence in mind to support these claims. What is that evidence?

  34. brain says

    You found the solution to this in a November day 53 years ago.
    (ok, only joking, please don’t send CIA here thanks)

  35. GerrardOfTitanServer says

    Re this claim:

    and misdemeanors and “mere” breaches of the peace (which were nonetheless majority government-handled by 1772, and virtually always in the major population centers);

    Many sources lead me to believe that we have voluminous records from Old Bailey,
    https://en.wikipedia.org/wiki/Old_Bailey
    from the early nineteenth century, and practically every trial for theft was done by private prosecution. Maybe you’re relying on some particular technical but esoteric definition of “misdemeanor”, but it seems that all of the evidence is against you on this proposition regarding the English speaking world post 1772.

    For one such cite of many, see:
    https://pdfs.semanticscholar.org/d823/aafafdc48d423b3575cfc5e4ced9efe668b3.pdf

    I feel quite confident on this particular claim regarding practically all cases of theft given the numerous discussions that I’ve seen discussing real cases. i have every reason to believe that the same was true in colonial American up to circa 1800.

    I am far less confident regarding discussions about murders, rapes, and other felonies. I haven’t yet seen a single specific described case of private prosecutor in court in a murder case. I’m still looking for proper sources that I feel are good enough to settle this for me one way or the other. I have found several sources that describe government prosecutors in murder trials, but I haven’t found sources that claim this to be universally true in England and American circa 1800.

    I’ve also become much more acquainted with the somewhat large variation in the ways that trials were performed in England and America – both geographically and over time. For example, did you know that circa 1800 in England, felony defendants were basically denied the assistance of counsel? This may be the true origin of the American’s constitutional right to have defense counsel.

  36. GerrardOfTitanServer says

    To Jaws

    Oooh. Interesting. Straight from Blackstone writing in approx 1765. Remember that an “appeal” to Blackstone is something like an original trial or original prosecution in a lower court.

    http://google.cat/books?pg=PA491&vq=prosecution&dq=editions:UOM35112203485109&id=KusKAAAAYAAJ&output=text

    An appeal of felony may be brought for crimes committed either against the parties themselves or their relations. The crimes against the parties themselves are larceny, rape aud arson. And for these, as well as for ‘mayhem, the persons robbed, ravished, maimed, or whose houses are burnt, may institute this private process. The only crime against one’s relation, for which an appeal can be brought, is that of killing him, by either murder or manslaughter. But this cannot be brought by every relation: but only by the wife for the death of her husband, or by the heir male for the death of his ancestor; which heirship was also confirmed, by an ordinance of King Henry the First, to the four nearest degrees of blood, (z.) It is given to the wife on account of the loss of her husband; therefore, if she marries again, before or pending her appeal, it is lost and gone; or, if she marries after judgment, she shall not demand execution. The heir, as was said, must also be heir male, and such a one as was the *next r,,,.., heir by the course of the common law, at the time of the killing of the J ancestor. […]

    I mean, this alone should shut down basically all of your claims because you so kindly gave such specific dates which allow your claims to be rebutted by Blackstone. But thanks for making me read a lot more and learn more about actual history. I feel even better about making these claims in the future.

    PS: In some or many (?) jurisdictions of that time in the American colonies and the United Kingdom, public prosecutors for murder cases was common, so far as I can tell. However, Blackstone seems to make it pretty clear that private prosecutors for murder cases was a thing.

  37. Ed Seedhouse says

    @21:”Immediate declaration by whom? The VP? The Chief Justice? The ghost of James Madison?”

    Go read your constitution. Twenty fifth amendment.

  38. says

    Even Trump’s lawyers are not arguing that he is not committing crimes, (or has not committed crimes), they are only arguing that he cannot be investigated, (let alone indicted), for those crimes.

    Yes, he is a criminal.

  39. George says

    I think we should consider Amending the Constitution to make the Attorney General a seperate elected official from the President. We’ve had too many corrupt AGs who were more interested in doing their President’s dirty work. So make it a position answerable directly to the voters. This is how it works in the majority of the States.

  40. unclefrogy says

    @46
    that is the most interesting part of this whole farrago of corruption , greed ,lies and incompetence
    uncle frogy

  41. unclefrogy says

    @47
    well if there was some way to insure that the AG would be none partisan it would inevitably turn into another partisan position I think separate from the executive branch maybe but political none the less
    in the end what ever we do, modify the system or just continue as is, it will be and has always been by the consent of the governed regardless of how that consent was granted or obtained
    voluntarily and freely given or through fear and intimidation or laziness and apathy
    uncle frogy

  42. says

    GerrardOfTitanServer:

    There are good and many reasons that I’m not going to throw a few hundred pages of citation on legal history up here; for one thing, it’s not my forum. (You’d be well advised to consider that.)

    Consider the distortions of two of the points raised above: (1) Very few theft offenses rose to the level of a felony, which even in the seventeenth century meant “term of imprisonment for more than one year.” After all, today, “shoplifting” is a “theft offense.” So is “uttering a dishonored check or money instrument.” It takes a rare and exceptional set of facts to make those felonies — usually related to a pattern of conduct that the law (rightly or wrongly) uses to predetermine bad character, not to individual offenses.

    And the less said about Blackstone as a source of much of anything, the better. Serious legal historians reject Blackstone as a primary source for anything other than a description of more than idiosyncratic perception. Blackstone was, far too often, just plain wrong, extremely selective in his source material in ways that would not be acceptable practice by the early 19th century, and has been quotemined to death by people blind to his bigotry and partisanship.

    That last line should strike a rather ironic chord on this forum. Legal history arguments relying on this sort of material smack of Lamarckianism… and creationist quotemining. <plonk>

  43. GerrardOfTitanServer says

    I know I’m blocked by Jaws (purportedly), but this is for the benefit of everyone else.

    So, I am tentatively concluding that Jaws is a hack or a quack. First, he says that the word or legal term of art “felony” meant “term of imprisonment for more than one year”. This is wrong, and patently wrong. It is wrong because “felony” at that time referred to crimes which could be punished by forfeiture of (all) property of the convicted, although it was frequently also used for offenses with the death penalty. For citations: see basically every online source. This claim is also aggressively wrong. Only someone completely ignorant of the relevant history could say something so wrong. Imprisonment as punishment for offenses in England at that time was rare. Suggesting that there was a classification based on length of imprisonment indicates an understanding that imprisonment was common and widespread, which is laughably wrong and ignorant.

    Notice how Jaws moved the goalposts too. Jaws said that most misdemeanors were tried by public prosecutors in the English speaking world, and when I counter that, he moved the goalposts to talking about felonies.

    And I’ve spent a fair bit of time trying to figure out if real scholars really say such critical thinks about Blackstone, and I am unable to find anything of the sort. The best that I’ve found is that Blackstone’s commentaries were not the most influential and most-read books on the law circa 1770, but even they admit that Blackstone was still widely read and generally respected. Even today, when asshats like Scalia cited Blackstone, liberals justices in dissenting opinions didn’t attack Blackstone as unreliable, and instead used a different interpretation of what Blackstone wrote. If Blackstone was really as bad as citing a creationist, I would think that the liberal justices would have pointed this out instead of offering a different interpretation of Blackstone’s words.

    Furthermore, if you look a tone of my recent citations,
    https://criminal.laws.com/felony/felonies
    it begins by describing the story of a single case in 1793 from the records at Old Bailey, of a private prosecution for theft, which ended with a sentence of conscription into the navy, and at that time it was close to a death sentence given that a war was on. The victim appeared as the prosecutor. The victim and the two thieves appeared before a judge, without attorneys for either side. Given that they were sentenced to conscription in the navy during a time of war was not a serious penalty is laughable. Given the voluminous evidence at our disposal, to suggest that this was anything but the a typical case is also wrong.

    Jaws may be competent at modern law, but Jaws is aggressively incompetent and ignorant regarding historical facts about the law.

  44. GerrardOfTitanServer says

    To WMDKitty
    I still don’t want to be enemies. I will still apologize for any offenses that I caused previously, and I will again offer to discuss here or in any venue what I can do to make up for any past offenses.

  45. PaulBC says

    GerrardOfTitanServer@51

    I interpreted Jaws’s “idiosyncratic perception” to mean not that Blackstone is completely negligible but that he doesn’t get the last word on something he wrote 250 years ago. I mean, I don’t know how legal scholarship works, but in most fields a treatise that old that predates formal peer review is more of historical interest than a gauge of present-day thinking. (Though I’m also pretty sure law is very unlike any field I’m familiar with, so who knows). That Scalia would cite him doesn’t disprove this, and in fact reinforces the view in my mind. This might be a useful start: THE IRRELEVANCE OF BLACKSTONE: RETHINKING THE EIGHTEENTH-CENTURY IMPORTANCE OF THE COMMENTARIES

    When I hear “Blackstone” what first comes to mind is the magician who appeared in Jiffy Pop popcorn commercials of my childhood. Which is completely wrong, because it was his father Harry Blackstone, Sr. who was “The Great Blackstone.”

    Can’t speak to whether Jaws is a crank or hack. What he said sounded plausible enough to me. IANAL

  46. GerrardOfTitanServer says

    To PaulBC
    Yea. What you say sounds reasonable. I just didn’t get how Jaws jumped from that to the comparison to creationists bit and the “plonk”.

    However, I will stand by my assertion that Jaws is just making shit up for confidently making the absolute nonsense claim that “felony” was defined in England in the seventeenth century according to length of jail sentence.

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