An Initial Impression of Brett Kavanagh

In the world of the Donald Trump presidency, it is normally expected that anyone not a “Trumper” must necessarily oppose anything he does and anyone connected with him. Moreover, it is clear that in many, if not most cases, such opposition is appropriate. None the less, each action, or in this case appointment, should and must be viewed on its own merits. To be clear, I would certainly have liked a more liberal justice to balance out the Court, and am as concerned as anyone about the future decisions of the Court on hot topic cases, but since he is now the nominee, what can we expect from “Justice” Brett M. Kavanagh if confirmed?

First, and foremost, do not expect him to moderate his conservative positions. He will remain true to them, and thus tilt the Court inexorably to the Right. Still, listening to the pundits, both Right and Left, there appear to be expectations that will be unmet on both sides from whether he would vote to overturn Roe v. Wade to whether he would vote to allow a sitting president to be criminally indicted, or even sued in a Civil Action. Most assume that since he is clearly “Pro-life” in his personal beliefs, that he would overturn Roe and since he has written that a sitting president should be immune from prosecution or civil litigation while in office, he would vote to not allow an indictment by Mueller, or even the lawsuits against him to go forward. Maybe, but a close examination of what he wrote leaves room for doubt.

With regard to Roe, I begin by turning to the Harvard Law Review where he recently wrote in a book review;

To be sure, some may conceive of judging more as a partisan or policy making exercise in which judges should or necessarily must bring their policy and philosophical predilections to bear on the text at hand. I disagree with that vision of the federal judge in our constitutional system. The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be.[1] (emphasis added).

Clearly, Judge Kavanagh is a strict textualist when it comes to both statutory and Constitutional interpretation. But where does that leave us when it comes to Roe? Part of the answer comes in his dissent in Garza (Garza v. Hargan. 874 F.3d 735, 753) where the issue was whether a 17-year-old girl (an undocumented, unaccompanied alien minor), who only found out she was pregnant after she was taken into custody, should be provided with immediate access to an abortion, at her request, and at the expense of the government, or wait until she was transferred to her sponsor’s living environment and pursue it on her own; acknowledging that she would have to fight for her release from custody legally, if she were even able to. About this, Judge Kavanagh wrote; “All parties to this case recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow. All parties have assumed for purposes of this case, moreover, that Jane Doe has a right under Supreme Court precedent to obtain an abortion in the United States.“  (emphasis added). Whatever his personal objection to abortion, which he clearly has, it would seem he is stating that he would not allow it to interfere with his interpretation of the law. Hopefully, this is a correct interpretation of his writing.

Finally, one of the most consequential questions about Judge Kavanagh is his opinion as to whether a sitting president is liable for criminal or civil litigation. In his article for the Minnesota Law Review in 2009, he expressed an opinion that a sitting president should be immune from prosecution, both criminal and civil, until after his term of office, only after which any statute of limitations should begin to run.[2] On the other hand, referencing the Court’s decision allowing civil litigation to proceed in Jones v. Clinton, 520 U.S. 681 (1997), he stated that their decision “may well be right,” but continued later to quote from the Court that ““If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation.” Id at 709. In other words, while he personally believes that it is destructive to effective government to occupy the President’s time with litigation (citing examples from both Presidents Clinton and Bush), and that such criminal or civil litigation should be postponed until after the President has left office, it is not now the law of the land. Thus, although he has never addressed the exact circumstances that exist with President Trump, he reiterates that because of the Constitutional Separation of Powers, the only recourse that should be available with a sitting President is impeachment, following which all criminal and civil litigation should proceed unhampered because no person, President or otherwise, is or should be above the law.

Taken as a whole, Judge Kavanagh’s views, while strictly Conservative and Constructionist, need not imply that he would vote against allowing such investigations and litigation to proceed, only that he believes it shouldn’t, but that the actual outcome should be left to Congress who may, or may not decide to enact a statute granting such temporary immunity. Thus, it is unclear, despite his well published views, that he may act as a Justice of the Supreme Court should and, in his own words, neutrally apply the law as it now is, and not inject his own beliefs and philosophy into his decisions.

 

 

 

[1] Kavanagh, B.  Fixing Statutory Interpretation, Harvard Law Review, Vol. 129:2118, 2120 (2014).

[2] Kavanagh, BM, Separation of Powers During the Forthy-fourth Presidency and Beyond, Minnesota Law Review, 93, 1454 (2009)

“MAGA” or APPOLYPSE?

After Justice Kennedy’s retirement, Trump Is likely to get to appoint another right-wing (not just Conservative) Justice to the Supreme Court giving us One-Party rule in the United States; one that follows the “personality cult” of Donald J. Trump. The Founding Fathers are not merely turning over in their graves but spinning! It’s what we fought a Revolutionary War to be rid of. With more than half of the people (roughly 30% Democrat and 40% Independent) no longer represented by this government, we are thrown back to the days of “Taxation Without Representation.” How did we get here and what can be done to restore democracy to the United States?

I will resist the urge to provide historical comparisons between the US and other authoritarian countries because it’s after the fact. Let’s concentrate on how we got here and what we can do to change things. Only about 35% of registered Democrats turned out to vote in 2016. It’s that simple. So, what can we do? VOTE IN NOVEMBER! If you refuse to participate in politics, you are doomed to be ruled by your inferiors. What else?

Step 1:  To the extent possible, prolong Trump’s SCOTUS nominee’s senate confirmation until after the election (probably not possible, but it’s worth a try).

Step 2: Democrats must put forth a comprehensive program to, as Trump put it, “Make America Great Again!” It isn’t enough to be anti-Trump or decry his policies and their disastrous effects on the economy, our allies, and the entire planet (e.g. climate change). We need to tell voters what we’re going to do FOR THEM. So here are a few issues around which Democrats and Independents can rally in November;

1. Immigration: We need to satisfy both sides on this issue. Perhaps adults can be charged, as Trump wants, with the misdemeanor of entering the country illegally, but then released with a tracking device until their hearing, keeping their children with them, rather than being kept in internment camps.
2. Guns: There is no quick fix for the gun culture in the United States, but it has been shown that where “assault” type weapons have been banned, gun violence has been reduced, especially mass shootings. A simple ban of the sale of these weapons, along with high capacity magazines would at least reduce the number killed.
3. Jobs: “It’s the economy, stupid!” First, we need to set the minimum wage at at least $15/hour so workers have a living wage. Next, we can take a page from FDR’s playbook and not only hire hundreds of thousands of people to help rebuild infrastructure but retrain those that are unemployed or “underemployed” because of changing circumstances, for the higher paying jobs in emerging (not dying) industries.
4. Education: Public education, now free through high school, should remain free through college (or trade school) at a public college, university, or trade school.
5. Healthcare: This one is simple – universal healthcare. We can do it, we can afford it if it’s done right, and make it better than what we, or other countries, have now. This would also include nationalization of professional licenses (medical, legal, accounting, etc.) so that professionals could go anywhere they are needed without new licensing examinations. Moreover, without this cost, business would not have to provide healthcare for workers, so they become much more competitive.
6. Tariffs: Trump was right about the need to level the playing field so that American business can compete around the world. Lacking understanding, however, he’s using a blunt instrument to swat a fly. Where trade is unfair, install specific tariffs. Otherwise, let’s stick with free trade; especially with our allies
7. Energy: We need to convert the US to renewable energy as soon as possible. This would not only lower energy bills, allow for increased energy consumption and provide hundreds of thousands (if not millions) of high paying jobs, but give the likes of OPEC and Russia less control over our foreign policy.
8. Criminal Justice System Reform. Stop the “War on Drugs” and do useful things to get people to stop or, better, not to start. We can begin by descheduling Cannabis so that it is legal federally, and allow the states to decide what they want, as we do with alcohol. Prisons should not be for-profit and since the death penalty cannot be applied in a non-discriminatory way it needs to be abolished.

There are many more issues that could be addressed including our military and veterans, homelessness, food, etc. but these are a good beginning.

TELL PEOPLE WHY THEY SHOULD VOTE FOR YOU, NOT WHY THEY SHOULD VOTE AGAINST SOMEOENE ELSE.

Finally, we need civility to return to the country. Aristotle once said, “it is the mark of an educated mind to be able to entertain a thought without accepting it.” Politics is the “art of the possible,” and we can only fulfill the Founders’ dream of a liberal democracy if we are willing to listen to the other side and compromise. Do these things, and we actually can;

“Make America Great Again!”

 

On the Retirement of Justice Kennedy

A Supreme Court needs balance to function. Trump’s Party now effectively controls both houses of Congress and, of course, the White House; “one party rule,” where most Americans are not represented in Congress or the White house at all. The last recourse has been the courts. Without a balanced Supreme Court, though, that majority of Americans would have nowhere to turn for justice. Even the ballot box is not immune. Joseph Stalin famously quipped that, “those who cast the votes count for nothing, but those who count the votes count for everything.”

With that said, let’s not prepare for Armageddon quite yet. History has seen many great countries; empires stretching for thousands of miles, begin as a democracy of some sort and devolve into autocracy. From ancient Athens, to Rome, and right up to our present day with the demise of the Soviet Union, autocratic regimes have eventually meandered back into some form of democracy. Moreover, even if we look at the absolute worst-case scenario, the rise and fall of Adolf Hitler and NAZI Germany, hope remains.

After World War I, an armistice agreement was forced upon the loser, Germany, that stuck in the throats of most Germans. When the economy crashed in the 1930s, those people at the bottom of the socioeconomic ladder searched for an answer, which came in the form of Adolf Hitler. He promised to strengthen the military and bring prosperity back to the people; to “Make Germany Great Again!” Perhaps most importantly, however, he told them that their problems were not their fault. It was the Jews, Gypsies, homosexuals, and a few others that brought it upon them and therefore they had to be “removed.” As Chancellor, Hitler asked for and received emergency powers from the Reichstag after his own people set fire to the Reichstag building and told the public and members of the Reichstag it was done by “Terrorists.” After that, there were, effectively, no more elections.

If that story sounds familiar, it should because we’re reliving it right now. To be clear, I am not equating Donald Trump with Hitler. I am, however, equating his narcissism, hunger for power and lack of morality with Hitler’s and his political and media tactics were children of Joseph Goebbels, Hitler’s Minister of Propaganda. Unfortunately, even without the Holocaust, our path may continue as theirs did. A Military, once dramatically increased in size, budget and influence must eventually go to war, if only to prove their value. A cabinet of Oligarchs, as Trump has surrounded himself with, will remain dependent upon him for their increasing billions and virtual immunity from the law, and thus strengthen his position.

As bad as this sound, and even though it could be triggered by Justice Kennedy’s retirement (at the suggestion of Trump?), hope remains. First, a truly “BLUE WAVE” in November would not change things back because of Trump’s veto power, but it could limit the damage. An election in 2020 of a Democratic (or even a moderate Republican) President could begin to reverse the damages as well. The most comfort, however, comes from looking that the original “Axis Powers” today. Japan is prosperous, modern and helping to lead the world in fields like Robotics. Italy returned to the “Lay-back” country they always were, and are part of the US inspired European Union. Finally, Germany, now a liberal democracy, leads all of Europe economically and politically. Angela Merkle is one of the most respected people in the world and most importantly, Germany is leading the fight for human rights and the human condition. We can return stronger and more free than ever, and ready to lead the world once more.

HOPE FLOATS

CAN THE PRESIDENT PARDON HIMSELF?

The questions of whether sitting Presidents of the United States (“POTUS”) can be indicted or pardon themselves has been floating around for a long time. There are legal arguments on both sides of each and while I believe that a sitting president can be indicted, I will leave that question for another time. As for his ability to pardon himself, I believe the clear answer is, “NO.”

When interpreting Constitutional meaning, just as in statutory interpretation, we begin with the clear words of the Constitution. Unfortunately, the Constitution is not clear on this point, but there are several reasons why it appears to be forbidden.

First, the clear language of the Constitution in Article II, §2 states, in pertinent part, “. . .  he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” There is only one kind of “impeachment;” that of “federal officers,” of which the President is one. It is generally agreed, therefore, that POTUS cannot prevent or overturn his own impeachment. The limitation on that power, however, highlights an underlying theme of the Constitution and its drafters; that no person is above the law. While Article II, §2 does not specifically deny POTUS the ability to pardon himself, such absence neither implies nor creates approval.

We must remember why we have a Constitution. It was not long before it was drafted that the colonies were ruled by the British Crown. It was, inter alia, the failure of the Crown and Parliament to take the welfare and desires of the colonists (all British citizens) into consideration, taxation without representation, and the charging of individuals with crimes for which the verdicts were directed by the Crown that forced the American Revolution. The drafters were understandably worried about the emergence of a central government that was too strong, and so the entire purpose of the Constitution was not to grant broad, general powers to the new federal government, but to limit its powers, vis-à-vis the states.[1]

With that understanding, it is clear that the farthest thing from their minds was to create a king in the United States. Yet, if POTUS could pardon himself and govern by Executive Order (as Trump has done since Congress has largely abdicated its power to him), it would have created an office that made its holder politically, nearly omnipotent, and destroyed the very checks and balances the Constitution created. His actions would stand above the law, from which there would be no recourse. Such an idea is rooted in the ancient concept of sovereignty wherein the Sovereign (e.g. the King) was, in fact, above he Law because he or she was the law. In the United States of America, it is the individual citizen who is sovereign.

The combination of Trump’s continued government by fiat (“edict”) and the ability to do so without constraint because of an unlimited pardon power would effectively make him an elected king; the thing the drafters feared the most. Hence, it is clear; taken as a whole, the purpose of the Constitution is to limit federal powers, not enhance them and granting POTUS the power to judge, then pardon himself must be held to be constitutionally invalid.

[1] See Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Some Issues with Mid-level Medical Practitioners

We have repeatedly seen posts online for and against so-called “Mid-level” medical practitioners and, truth be told, as a physician I have been known to pick sides in this issue. As a physician who is also an attorney, however, I believe the time has come for a legal perspective. First, though, I think it’s important to understand who these medical practitioners are, and why we began to produce them.

Decades ago, we could all see a shortage of what has been termed “Primary Care” physicians looming ahead. These generally include Internists, Family Physicians, and some Pediatricians; areas that fewer medical students were choosing because of the substantially lower reimbursement they received for their time than procedure-oriented specialties. The idea was a simple one. Some patients do not always require the level of knowledge and skill we learned in Medical School and Residency. A patient returning for a blood pressure check and some adjustment to their medication could probably be seen by (for example) a Nurse Practitioner. He or she might see the patient, note a slight increase in blood pressure and slightly increase the dose of medication while making another appointment for a recheck. Since all these advanced practitioners (“PAs”, “NPs or APNs”) were subject to oversight by a licensed physician who was in the same office, and who could answer any questions the NP had even before the patient left the office, or any error or oversight would be caught when they reviewed the patients’ charts, it was felt to be a safe and cost-effective way to supplement physicians’ ability so see more patients and so make health care more available and affordable. Moreover, originally these advanced practitioners were chosen from nurses who had many years of experience caring for patients, so while their formal education may have been abbreviated, their experience would go a long way toward their understanding of what they could handle, and what had to be referred to their supervisory physicians.

Since then, however, the original concept has been mangled to the point where many states have now allowed APNs to practice independently of physicians. This position has been advocated for by the insurance companies, of course, so they could pay out less money and some medical facilities for the same reason. This was followed by what have become diploma mills, many of which award Master of Science in Nursing (“MSN”) degrees and even a doctorate in Nursing Practice (“DNP”) purely online or with minimal hours “shadowing” a physician. The time and education it takes to become an APN or PA has been compared by some in the following charts:

The other issue is the definition of who is a “doctor” or, more importantly, how a patient can know who is really treating them since there are so many doctorates being awarded by so many different schools.

While I did not research these charts myself, I believe them to be reasonably accurate. Moreover, even if there are inaccuracies or inconsistencies, the reality is clear; the training MDs and DOs receive is many times greater that that of the mid-level practitioners.

The question now is whether the public is being best served under the “independent practice” statues that are being passed in some jurisdictions and, if not, how is a patient to know who is taking care of them? My answer to the first question is a resounding “NO,” and to the second, the only way to know in some cases is to ask. This should not be the case and what follows are some legal issues that physicians, and others, should pursue, with litigation if needed, to turn the tide.

The first, and most obvious issue is that of misrepresentation or, in some cases actual fraud. If an APN appears in a white coat whose name tag reads “Dr. J. Jones,” it is reasonable for a patient to assume they are a physician. In fact, some are now calling themselves physicians and there is even a new group who label themselves as “Cathopathic Physicians.” Moreover, while their license is for Nursing, what they do is practice Medicine with no oversight. Under these circumstances, these practitioners are clearly misrepresenting themselves and should be held liable under the appropriate circumstances.

The next issue is one involving malpractice. When a physician is negligent, they are held to the legal standard of a reasonable physician practicing in their specialty. Now, however, when an MLP is independently doing what physicians traditionally do when they practice Medicine, they should clearly be held to the standard of a physician doing the same thing. It is not reasonable to say they can treat patients, some of whom may not even realize they are not being treated by a physician or told that being treated by an APN is the same as being treated by a physician and hold them to a lower standard because their training is so much less. Imagine if an MD or DO who only had a few hours of training in the field performed neurosurgery, injured a patient, but was not held liable because they acted within the scope of their “training.” “Ridiculous,” you would say, but the analogy holds for NPs who practice independently. That must change and can only be changed through legislation (not likely today) or though litigation.

There are many other issues that need resolution, inter alia, from standardization of education to licensing standards and certification, and these can be covered in subsequent blogs, but the two mentioned above are both ones that, as a physician/attorney I would personally want to litigate. After all, I may be a physician, but I’m a patient also and I want the best care I can get when I become ill, and the ability to know the background of the person treating me.

 

WHEN THE TAIL WAGS THE DOG . . .

Today, the United States Supreme Court heard arguments in what may prove  to be the most important case in the last 20 years. The issue was political gerrymandering. They already ruled in two previous cases that racial gerrymandering was unconstitutional, and at least two states have had to redraw their voting districts because specific racial groups were being denied any “effective” vote because of the way the party in power drew the lines after the last census (it’s done every 10 years).

The issue before the Court today was whether a party in power can define voting districts so that they are virtuallyy guaranteed a win, even if they lose the popular vote (no, this has nothing to do with the Electoral College when Hillary Clinton received nearly three million more votes and lost the election). Chief Justice Roberts asked the question, “if we were to rule that political gerrymandering was unconstitutional, and the Democrats won, would people say we took sides?” The answer is that some people would always say that but the real question is much simpler, yet is at the heart of our entire democracy; SHOULD THE PARTY IN POWER BE ABLE TO CHOOSE WHICH VOTER’S VOTES WILL COUNT, AND WHICH WON’T?

If you don’t know the answer to that question, you’re living in the wrong country!

“PARDON ME”

Only a few days ago, President Trump (AKA @realDonaldTrump) publicly issued a pardon to the totally unrepentant Ex-sheriff Arpaio while a massive, category 4 hurricane hurdled destruction across the gulf coast. No one doubts that it was a purely political pardon, since Arpaio, while convicted, had yet to be sentenced and had certainly not begun an appeal. So, he’s off the hook? I guess Trump, once more, never read the Constitution and the Federal Rules of Evidence. In order for Arpaio to accept the pardon, he had to admit to the crime; the pardon doesn’t wipe out the conviction.

OJ Simpson was acquitted of murder, but it didn’t stop the ensuing civil lawsuit from destroying him, and neither will Trump’s pardon stop the same thing from happening to Arpaio. Can a criminal conviction be used against someone in a civil lawsuit if they’ve received a pardon? Listen to the words of Federal Rule of Evidence 609(c):

Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

 I have no doubt that Arpaio will be the subject of many lawsuits by his victims and since he has been clearly unrepentant, there is also clearly no evidence of rehabilitation. Hence, while he may not go to jail (at least for this crime), his conviction may serve as prima fascia evidence in a civil lawsuit. It’s up to the particular judge whether to admit the evidence, of course, but I believe there is a very good likelihood it will be allowed.

THE PRICE OF FREEDOM

There is an aphorism, alternately attributed to either Joseph de Maistre or Alexis de Tocqueville which states that people get the government they deserve. Perhaps this has never been more clearly demonstrated than with the election and continued prominence of Donald J Trump as President of the United States. “America,” Michael Douglas pronounces in the movie, “The American President,” is advanced civics. It’s going to put up a fight. You have to want it bad.” He then goes on to assert, “you want the freedom of speech?” “Then you have to be willing to defend with your life the right of someone to shout from a soapbox at the top of his lungs, that which you would spend a lifetime opposing at the top of yours.” “You want to talk about the Land of the Free?” “Then the symbol of our country needs to be not just a flag, but the right of someone to burn that flag in protest.” “Celebrate that, teach that in your classrooms, and you can talk about the land of the free.”

In the last few days, a commission set up by Donald Trump to investigate his entirely debunked “voter fraud” claims sent a request around to all of the states requesting voter information that would include name address telephone number party of registration Social Security number and a variety of other facts about each individual in the country who has ever registered to vote. Although more than 40 states have given him the answer that most of us would like, specifically “NO WAY,” the fact that such a commission could even ask for information like that shows how far we’ve fallen from the democratic dream of our Founding Fathers.

In 2016, only about 59% of eligible voters actually cast their ballots. This means that over 40% of voters in the United States either did not care who was elected, were too lazy, or failed to vote as a protest that their chosen candidate was not the one actually running for president. The result was that despite Democrats outnumbering Republicans, and despite Hillary Clinton winning the popular vote, we have a Republican House of Representatives, a Republican Senate, and Donald John Trump occupying the White House. Edmund Burke, an 18^th century Irish philosopher once admonished us that, “all that is necessary for evil to triumph is for good people to do nothing.” So it is with elections.

On this day, July 4, 2017, I annually posted my tribute to the things I felt made America great. I cannot do that this year because Donald Trump and the American voter have, together, initiated our fall from grace. In November, 2016 only roughly 59% of Americans went to the polls. For Republicans, voters eliminated 16 other candidates who, whether more or less Conservative, were at least qualified and (mostly) intelligent. Whether or not any of them were a good choice to be President of the United States, we would rest easier if one of them had won. Our current administration blames debunked “voter fraud” for his loss of the popular vote, just as he blames the “Main Stream Media,” AKA “False News” for people being against him and President Obama for everything else. Now, as 44 states have refused to violate your privacy for a potentially tyrannical purpose, he sees a massive conspiracy among all the states. “What to they have to hide,” he tweeted? The answer is simple; “you!”

The President has, in less than 6 months, undone generations of the Good that made the United States that “shining city on a hill.” He put billionaire oligarchs in charge, is doing away with everything that keeps the corporations from raping America, appears to be allowing Vladimir Putin to dictate our policy, drawing us into multiple real and potential military conflicts (some nuclear), and has alienated nearly every nation on Earth including our closest allies. His stream of lies has caused everyone to mistrust us, he is pointing the economy toward shambles, and wants to remove all safety nets from our most vulnerable populations so that he and his cronies can accumulate more wealth. And if all of that is not enough, he has flouted the Constitution, attacked women, the disabled and the poor and, finally, withdrew us from the Paris Climate Accord jeopardizing our children’s’ and our planet’s futures, all while encouraging internal dissent, bigotry, misogyny and violence.

I was asked, today, am I still proud to be an American? The answer is yes. I am proud to be an American, but ashamed of America and the voters who elected an incompetent clown to be president and the roughly 36% of voters who remain loyal to Trump. Mr. Trump, it is not only “patriotic” to question our President and members of Congress, it is our obligation as citizens. As for the Press, without whose freedom to comment and condemn as well as inform we would not exist as a republic, I answer with the immortal words or one of their legendary number, H.L. Menken who famously quipped that, “it is the job of the Press to comfort the afflicted, and afflict the comfortable!” With those words, I end this the way I believe he would have.

#Resist

-30-

CAN DONALD TRUMP BE INDICTED WHILE A SITTING PRESIDENT?

Let’s be clear. The Constitution provides no explicit immunity from criminal sanctions for any civil officer. The only textual grant of immunity for federal officials appears in the Arrest and Speech or Debate Clauses of Article I, Section 6 which states, in relevant part . . .

The Senators and Representatives shall . . . in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

After searching ART II, which deals with the Executive Branch, I have been unable to find any such reference. It has been established that the Vice President can be indicted while in office (eg, Spiro Agnew in 1973), and since the Framers specifically exempted members of Congress, they could and would have done the same for the President if it had been their intent. I believe the Supreme Court, if called upon to decide, would find these arguments applicable to both offices (especially with an “Originalist” like Neil Gorsuch on the Court.

Moreover, the Impeachment Judgment Clause provides:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This issue has been raised repeatedly since the founding of our country. In the Burr case, President Thomas Jefferson asserted that as President, he had the “privilege” of not turning over subpoenaed documents that Aaron Burr, an ex-vice president charged with Treason, claimed would exonerate him. Burr was initially tried by Chief Justice Marshal, sitting as a circuit judge in Virginia. Although the reasons remain cloudy, Jefferson ultimately complied with the subpoena and Burr was acquitted, but he never did appear in the courtroom as ordered. See United States v. Burr, 25 F. Cas. 187 (C.C. D. Va. 1807) (No. 14,694). Nearly this exact scenario was replayed twice more; one for President Nixon, and again for President Clinton with the same result each time.

In Nixon, Chief Justice Berger freely quoted Marshal’s opinion in Burr which stated, inter alia, “[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual. See United States v. Nixon, 418 U.S. at 708. Although this would lean toward the creation of a Presidential immunity doctrine, many have interpreted it as meaning that while there is deference to the Office of the President, there is no absolute immunity from criminal proceedings for a sitting president.[1] Others, believe that in this instance, Jefferson established a right for an independent interpretation of the Constitution by the Executive Branch. In no interpretation, however has there ever been any absolute immunity from criminal prosecution mandated by statute or judicial precedent. Ultimately, while Executive Privilege has been exerted and recognized many times in our history, it would seem that it, and the idea of Executive Immunity are more tradition than law and, therefore, not dispositive.

There is also a “separation of powers” argument that concludes that since the President is the only nationally elected officer, a trial of a sitting president would not only upset the balance of powers, but allow 12 people, sitting as a jury, to overturn a national election, in addition to impeding his ability to function as President. It is arguable, however, that it would be possible to indict a President, but defer trial until he was out of office, without in the meantime unduly impeding the power to govern, and the symbolism on which so much of his real authority rests. There are drawbacks, though, to withholding post indictment proceedings until after a sitting president is out of office, such as the possibility that the statute of limitations might run, thereby resulting in a complete hiatus in criminal liability.

 The Office of Legal Counsel (“OLC”) prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune.[2] The OLC Memo concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office, but that the President is uniquely immune from such process.

Secondly, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew. In response to a motion by the Vice President to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution.[3] Bork was careful to explain, however, that the President, unlike the Vice President, could not constitutionally be subject to such criminal process while in office; a position which was reached by asserting that indictment and prosecution of the sitting president should be barred by the doctrine of Separation of Powers because such proceedings would “unduly interfere in a direct or formal sense with the conduct of the Presidency.”[4] It was on this ground that the memorandum ultimately concluded that the president was immune from criminal prosecution while still in office.

While there is a great deal more history, written material and case law involved in this issue, after reviewing the facts, I believe the concept of Presidential Immunity is based primarily on individual opinion and tradition, and has no basis in law. Therefore, the answer to the question originally asked is, “yes,” the President can be indicted and tried for criminal acts, even while he or she is in office, and independently of the “political” act of impeachment.

[1] John C. Yoo, The First Claim: The Burr Trial, United States v. Nixon, and Presidential Power, 83 Minn. L. Rev. 1435 (1998)

[2] Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) (“OLC Memo”).

[3] Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity (filed Oct. 5, 1973), In re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States (D. Md. 1973) (No. 73-965) (“SG Brief”).

[4] Id at 27

ANALYSIS OF THE 9th CIRCUIT RULING IN WASHINGTON V. TRUMP ET AL.

After the recent Ninth Circuit decision upholding the District Court’s Stay of Donald Trump’s Executive Order, I received many calls and emails asking what it all means. Here, then, is my “capsule” analysis.

The State of Washington, joined by Minnesota (collectively the “States”), filed suit in District Court and requested a Stay of the President’s Executive Order (“EO”) until the Court could hear the evidence and decide the case “on the merits.” The Government appealed to the 9^th Circuit Court of Appeals, asking for a Temporary Restraining Order (“TRO”) allowing implementation of the EO while the Court hears the evidence. The purpose of a Temporary Restraining Order (“TRO”) is to protect those who would experience irreparable harm from the Stay. Briefly, there are four factors to be weighed by the court before issuing a Temporary Restraining Order. These include 1) whether there is a likelihood of irreparable harm to one side or the other, with no adequate remedy at law[1], 2) that the balance of harm favors the movant (“Government”), 3) that there is a likelihood of success on the merits, 4) that the public interest favors the granting of the injunction. The Government lost on all counts and the Stay remained in place. Those are the basics but, if you’re interested in more detail, read on.

The 9th Circuit had an option to simply grant or deny the government’s motion to lift the Stay issued by the lower court, but to their credit, chose to issue a 29 page opinion describing their reasons for denying the Government’s request. They first explained that while a Stay, by its nature, is not normally appealable, the Stay issued by the District Court possessed the “qualities of an appealable preliminary injunction.” Thus, the Ninth Circuit retained Jurisdiction[2].

The second issue was whether either side would suffer irreparable harm if the Stay was not lifted. While many were shown to suffer irreparable harm if the Stay were lifted, the Government failed to show any credible evidence that irreparable harm would result, even considering “National Security,” in the time it would take for the District Court to decide about a permanent injunction. Thus, the “Balance of Harm” favored the States.

The third issue the Court had to tackle was whether the States were likely to succeed on the merits of their claim. The trial court felt that they would. The Ninth Circuit reached no decision on the merits, but held that the lower court was reasonable to believe that the states would win on the merits.

Next, the court had to decide whether granting the TRO served the public interest. Just as the decision regarding “harm” was a balancing test, so the court found that the Public Interest was best served with the Stay in place. Ultimately, therefore, the 9^th Circuit held that the government did not meet its burden of proof and consequently denied the TRO.

Finally, the court’s order was issued “Per Curiam”. Rather than listing any one judge as having written the opinion, by issuing it “Per Curiam” they defrayed President Trump’s ability to attack yet another judge. Ultimately, though, the states will still have to prove their case or the EO will be reinstated if not totally, then at least in part.

[1] “No adequate remedy at law” means that simply throwing money at the States or other plaintiffs if they later win will not “make them whole.”

[2] We will leave any discussion of “Standing” for another time.