Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Monday, August 28, 2006

All Bars To State Prosecution of President Unconstitutional

The State Attorney Generals may prosecute the President for violations of state criminal codes.

This builds off the discussion here and here.

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1. Nothing in the Constitution bars state attorney generals from enforcing state criminal law against the President.

2. Congress only has the power to start proceedings to remove the President from power; it does not have exclusive power to enforce or not enforce the law.

3. Sovereign immunity claims, although interesting, have no bearing on criminal cases.

4. It is one thing to punish a head of state; quite another to remove them from office. Kings and Queens have been jailed, still retaining title. A vice president has been indicted by state grand juries. Senate rules permit the Sergeant at Arms to Arrest the President. House rule 603 permits Grand jury to bring charges against a President.

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It is unconstitutional to have no remedy when Presidential crimes violate rights and destroy the Constitution. Current approaches to enforcing the criminal laws against the President unconstitutionally leave discretion where there can only be a requirement.

The Constitution permits states to sue officers; creates a requirement to enforce rights; and creates a duty to act. There must be a remedy when the Constitution is violated, and Congress refuses to prevent violations of state criminal statutes.

Absolute Sovereign Immunity, even if it were applied to criminal law, is not a constitutional bar to state attorney general action against a sitting President

Efforts to Insulate the President From Criminal Liability Are Unconstitutional

Privilege and Immunity Doctrines When Abused Can Be Ignored

The Courts Without An Act of Congress May Ignore Provisions Insulating the President From Criminal Liability

Precedent May Be Jettisoned In Absence of Congressional Action

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It is meaningless to argue that the only way to criminally prosecute a President is through the Congress.

It is without merit to argue that proceedings subjecting a President to State-level criminal sanctions, would amount to an illegal impeachment proceeding by the States. Impeachment is only to remove a President. State prosecutions against the President in the Supreme Court, even if successful, would not remove the President from office and not amount to State exercise of Constitutional impeachment power exclusively delegated to the Congress.

There is no basis to assert that sovereign immunity, even if applied to criminal proceedings, would bar the President from being jailed. DoJ and the White House unable to any history that supports their contention that a President, once in office, can only be criminally prosecuted by the Congress through impeachment.

* * *

There is precedent to jail a head of state, and permit them to retain title. English Kings and Queens have been jailed after the singing of the Magna Charta, and retained their title. Whether they exit jail while that title remains in force is an irrelevant matter. The same precedent would apply to the President. Upon conviction by a jury working under the US Supreme Court, the President could be jailed, still retain title as President, and not intrude upon the Congressional impeachment power.

Bars To State Prosecutions Against the President Are Not Constitutional

It is illegal to bar accountability for violations of the law. It is not constitutional to thwart State enforcement of the criminal statutes.

Deference to the president unreasonably blocks enforcement of that oath. Any legal theory which refuses to enforce the law is not Constitutional, merely discretionary. Yet, when that discretion, however justified, permits the illegal destruction and abrogation of the Constitution, the discretion and deference is no longer discretionary, but a subsequent violation of ones oath to protect the Constitution.

Deference to the President is not constitutional when that deference permits the destruction of the Constitution. The Constitution does not delegate to anyone the power to defer to the President any prerogative or privilege used to assert absolute immunity to prosecution. The only power delegated through this Constitution is the narrow power to Congress to choose whether to remove or not remove the President from office. Congressional action or inaction on a narrow issue of fitness for office is in no way an absolute bar to any and all action to otherwise enforce State criminal statutes.

Narrow Inaction Does Not Compel Universal Inaction

Congress, in refusing to investigate Presidential crimes, has abrogated its Constitutional obligations to enforce the Constitution. However, Congressional malfeasance does not compel any or all State Attorney Generals to harmonize their state level enforcement with Congressional malfeasance.

Asserting Presidential immunity to state criminal prosecution unreasonably permits the destruction of the Constitution. Rather than enforce the law, the current situation has incorrectly sent the signal that the oath of office and criminal statutes, as applied to enforcement of the law against the President, are discretionary.

Deference to the President need not continue by anyone when that deference is abused to violate the law. There is no basis to accept a status quo that permits the destruction of the Constitution. Where there is Presidential fraud, it is reasonable for the public at large and the courts to ignore and reject all Presidential precedents, immunities, and privileges which have been abused.

Government Actions, the Constitution, and the Republic Must Be in Harmony

A Republic is based on the idea of elected representatives who act on behalf of the sovereign, We the People. This Republic, as it practices Constitutional law, leaves enforcement of the law to the discretion of the voters.

If the voters do not elect a majority to Congress that is interested in the law and otherwise choosers to not protect the Constitution, the voters have effectively chosen to destroy the Constitution without offering a suitable replacement with a solemn ceremony. This is contrary to the requirements within Federalist 78.

The popular will, however misinformed, does not have the power, through neglect or deference to unconstitutional acts, to defy the essential purpose of the Republic or the Constitution. Rather, when the voters, through Congress, jointly agree to not enforce the Constitution, then we have neither a Republic nor a Constitution.

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It is against public policy to show deference to criminals. They have narrow recognized rights, but not absolute power to destroy the Constitution. The error is to equate rights of criminals with absolute power to destroy the document which recognizes those rights and powers.

Claims that the President cannot be prosecuted by the states are not constitutional claims. This incorrect protects the wrong sovereign. The President is not sovereign; We the People are sovereign.

Any action or rule which allows the President’s illegal conduct to go unchallenged, unchecked, or unprosecuted is not Constitutional. It is unconstitutional to have a bar to accountability for crimes against the Federal or State government.

A claim to immunity to criminal prosecution is not a delegated power within this Constitution. Rather such claims are a conditional privilege, not an issue of power.

A claim of Presidential immunity against state prosecutions is invalid. This creates discretion and deference despite the oath and obligation to compel action, and remove all discretion.

A claim that the President is immune to state prosecutions is an arbitrary rule to avoid accountability. All claims that the President is immune to prosecution are invalid when the President has committed fraud. Like Executive Privilege, when there is fraud the privileged need not be recognized.

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Any claim that the President is absolutely immune to arrest are without merit. There is precedent for arresting American Presidents without impeachment proceedings. The Senate Sergeant at Arms can arrest the President if the President violates the Senate rules.

A state officer, working with the State Attorney General, may lawfully arrest and detain the President when he violates State law. Any rule, statute, policy, or act of Congress that prohibits law enforcement from enforcing the law against a sitting President is unconstitutional.

* * *

This American Republic has permitted this President to create an illusory barrier to accountability. Sovereign immunity to prosecution, as perversely applied to this President, fails to recognize the real sovereign: We the People.

The President, as a creature of the Constitution, may not violate sovereignty -- We the People – by defying the law of any land under the umbrella of this Constitution.

If the President, in claiming he is sovereign, asserts he is immune to prosecution; then surely the real sovereign, the source of his power, should be able to enjoy that same immunity. But that is now consistent with the ultimate standard of justice: that we are under the rule of law, not man. The law, even if Congress chooses not to enforce it, remains the law.

This executive has abused his power and his false claim to immunity to criminal prosecution. Even if this privilege were true, which it is not, this privilege can be stripped, not recognized, especially when there is illegal presidential conduct which violates the Constitution.

This President claims there is immunity to prosecution. But the immunity is misapplied. We the People are immune to abuse; the President is not immune to accountability.

It is legal fiction to claim the Constitution has delegated any power, right, or privilege to permit its destruction. There has been no Constitutional delegation of any power, privilege, or right for the President to remain immune to prosecution by the States.

Any claim that history does create immunity to criminal suits is a misreading of history. There is no precedent establishing any rule which immunizes a King or Queen from jail. Even the Divine King, proclaimed to be a God, has been punished. While punished they retained their title. Before 1776 a King or Queen could and was jailed. The Declaration of Independence does not trade one tyranny of Kings, for a tyranny of deference to self-proclaimed Gods.

* * *

Presidential immunity to prosecution is not a delegated power or right in the Constitution. Nothing in Article II mentions immunity to accountability. Rather, the Constitution compels, through oath the opposite: The agreement to be accountable through that oath to the Constitution. This President has abused the Constitution. He is not entitled to any real or imaginary power that permits that abuse to continue. Rather, he may lawfully be deprived of his discretion to abuse power by lawful jailing.

Absolute Presidential immunity, as applied, has permitted this Executive to destroy the Constitution, from which he claims the source of this immunity. He has sealed his fate: By destroying that which he derives his power – the Constitution – he may not lawfully rest with any assurance that the privileges he has claimed, as an extension of that Constitution, need to be recognized or respected.

* * *

Consider the case of the Los Angeles assistant district attorney. He found problems with a warrant and voiced his concerns. He was punished for commenting on the work of a peer. In effect, the Supreme Court found that a government employee does not have the absolute right to speak freely. Surely, if workers, despite citizenship, have no absolute right or power to speak, a president, as a citizen, does not have the absolute right to abuse.

Presidents do not have a delegated power called immunity. He took an oath to enforce the law, not pretend he is immune to all constraints on his power. Rather, his powers are narrowly defined. Where the Constitution has not delegated power, he has no power. The White House and Department of Justice cannot point to anything which says the President has been delegated any power or privilege called immunity to the law.

The President is not a leader, but a citizen who has put himself above the law. This is unconstitutional. Where one set of rights, privileges, and immunities are not recognized by the courts as applicable to one class of citizens, so too may the courts not recognize other rights, privileges, and immunities of another class of citizen – those who have been chosen to be President. He remains a citizen, and the court finds that citizen rights and immunities can be curtailed while in office. Surely, their discretion to abuse power can also be constrained by anyone, especially when he has no delegated power to lawfully abuse.

There is a balanced disregard for personal rights at all levels of government, not just government workers. The court finds that government may curtail rights of citizens to speak; it can also curtail immunities of citizens to accountability for abuse of Executive power.

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Congress has no power to defer to those who abuse the Constitution, nor may it stand idly while the President abuses and destroys the Constitution. Rather, the 10th Amendment recognizes, without delegating this power to Congress, the States retain the power to do what Congress otherwise refuses to do: enforce the law.

Congress has not been delegated any power to permit abuse, nor decline to enforce the law, nor assent to any rule which permits the destruction of either the Constitution, or the broad notion of the supremacy of the law.

Congress does not have the power to decline or permit whether or not the President is prosecuted by the states. The Constitution is silent on this matter, especially in cases where Congress has a rule or enacted a statute, but otherwise refuses to act to preserve either the notion of law or the Constitution itself.

Presidential immunity to criminal prosecutions is not an expressly delegated power or right, but a privilege that need not be respected or recognized when abused. Absolute presidential immunity to prosecution as practiced has facilitated the destruction of the mechanism to assert the President is immune to prosecution: The Constitution. Once that power, position, privilege is abused to engage in any criminal behavior, the courts need not recognize that privilege.

A perceived immunity to prosecution is not a delegated power, but has been an abused privilege. Until now, this deference and privilege has been respected because it has not been abused. Now that this deference and privilege have been abused, the privilege and deference need not continue. All abused privileges can and must be diluted, then ignored as inabsolute.

It is fiction to assert that the president is a head of state, and cannot be punished. There is no delegated power called Presidential immunity to prosecution. Even if there was, it would not be consistent with the Constitution that otherwise requires the Constitution to remain en force, not discretionary.

The courts have the power to remedy a violated right: The right of the States to be free from Presidents which destroy the States’ right to a republican form of government. The courts do not have to recognize any claim or practice related to presidential immunity to prosecution when doing so destroys the Constitution.
Claims by anyone that the President is immune to prosecution by the states are not constitutional. The claim as practiced has illegally permitted the abuse and destruction of the Constitution. Custom has created an illusory bar to needed sanctions.

There is no reason to recognize any immunity otherwise not in the Constitution, or whose recognition permits continued destruction of the Constitution. There is a middle ground between [a] inaction and destruction of the Constitution and [b] impeachment, both meaningless constraints on power. The States have the power to act.

* * *

In 1541 Queen Catharine Howard, sent to the Tower of London, remained Queen until 1542. Her punishment of jailing did not deny her title. So too can a President, consistent with English law, be jailed and retain his title as President.

This Executive and his lackeys in the Department of Justice have rewritten history. To justify presidential immunity to prosecution, outside the Congress, some may have suggested the President, as any head of state, can only be lawfully prosecuted by the terms outlined in the Constitution. The Constitution is silent on whether the President can or cannot be jailed. Surely, if it were not lawful to punish a president, the Senate Sergeant at Arms would not have the recognized power to arrest the President for violating the Senate rules. Surely, the States have the same power – to arrest the President for violating State rules.

It is foolish to argue that official acts of a President cannot be prosecuted by the States. The public interest is only with official acts which violate the law. To assert that the violations cannot be prosecuted invites more violations. This is not Constitutional. Even if there is a rule or precedent that the President’s official acts cannot be subject to state-level prosecution before the Supreme Court, such a rule cannot be Constitutional: It permits the destruction of the Constitution, not in theory but in practice.

The Constitution compels someone come to its aid. We have all taken an oath to protect the Constitution against domestic enemies. Someone has the power to protect the Constitution. Whether Congress chooses not to exercise that power is meaningless. Neither the 10th Amendment nor the Constitution itself prevents a State level official from doing what the public officials otherwise refuse to do: Protect this Constitution from the fugitive in the White House.

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Asserting that the President is immune to prosecution outside the Congress is a misreading of the Constitution. Rather, debating whether the President’s criminal conduct was or was not an official act is an excuse not to punish the President for those criminal acts. He remains President, and it is reasonable to conclude this abuse of non-delegated power is an official act and deliberate choice to violate the criminal statutes. To argue that this choice or act was not informed would ask that we embrace another fiction: That the President, because he is a buffoon, cannot be held responsible for his actions. Congress, through silent assent and letting this clerk in the oval office, has concluded that the President is fit to remain in office. Surely, he is fit to be tried by the State Attorney Generals. Either

  • A. The President is fit to remain in office and is competent, and can be tried by the states for acts he knows, or should know, violate the law; and there is no question as to his ability to comprehend the law and make informed decisions; OR

  • B. The President is not fit to remain in office, incompetent, and Congress has unconstitutionally permitted a buffoon to defy the laws without any examination of that criminal conduct.

    The remedy is to prosecute the President, and require the Department of Justice to argue that the President is incompetent; then lawfully remove from office those Members of Congress who, despite the DoJ claim of Presidential incompetence, refuse to protect the Constitution from this incompetence.

    The State Attorney Generals may lawfully share information on which State-level-regulated DoJ Staff attorneys are subject to which states’ jurisdiction. Either

  • A. the US Attorneys and DoJ Staff are going to enforce the law and gather evidence to support the State attorney generals enforce the law; OR

  • B. The US Attorneys and DoJ Staff are going to interfere with law enforcement, and should lawfully be disbarred for failing to protect the Constitution from the domestic enemy in the oval office.

    * * *

    We’ve heard nothing but excuse not to lawfully punish this Executive. We’ve heard the following non-sense:

  • A. Charges cannot be brought because he was in control, and this was an official act – which does nothing about stopping what is illegal; OR

  • B. The mechanisms which permitted this fraud and abuse of power wasn’t actually in control, and nobody can be held liable for the illegal violations of the law – which says nothing about whether or not failed governance is remedied.

    Prosecutions are not simply about punishment, but they are to right the scales of power before the law. A prosecution sends information about what is wrong, and what needs to be fixed. Where Congress is defective in responding to what is wrong, the State Attorney Generals have the duty to remedy what is right: The Constitution.

    A system is not legitimate when it refuses to sanction official abuse. It cannot be lawful for there to be any bar to criminal prosecutions against the President.

    It is a foolish inconsistency to permit only civil litigation for non-official acts committed outside the White House, but to decline to recognize the power of the States to prosecute for official acts which violate the law.

    * * *

    Heads of state are not immune to punishment. America must modernize its notion of Presidential immunity to criminal prosecution. No man is immune to prosecution; only the law and Constitution are immune to prosecution and destruction. The President is not the law. He is subject to the law, and will of We the People, who are immune to abuse.

    DoJ may not lawfully ignore the inconvenient precedents from the same era they point as the basis for sovereign immunity to criminal prosecutions. Even after the Magna Charta signing in 1215, Kings and Queens have been jailed, but retained their title. The American system of governance, despite the events of 1776 and 1789, fails to recognize this lawful punishment of a head of state.

    DoJ Staff Attorneys may not credibly argue before the Supreme Court that there is any precedent which absolutely immunizes the head of state against criminal prosecutions; or that a prosecution and jailing would automatically violate the Constitution. Rather, heads of state have been jailed and permitted to retain title. This would be consistent with the Constitution: Lawfully jail the President, permit him to retain his title as President, and in no way violate the exclusive power of Congress to remove the President from office. The President, if he did not want to be punished while in office, should not have violated State law.


    Here are sample names and years when royalty, heads of state, and other leaders in England were imprisoned, permitted to retain title, and punished despite their continued claim of title.

    1142 Empress Matilda

    1193 Richard I, imprisoned then released in 1194

    1264 Henry III

    1465 Henry VI imprisoned until 1471.

    Edward the IV was imprisoned as King.

    1536 Queen Anne Boleyn imprisoned in Tower of London

    1541 Queen Catharine Howard

    1610 Arabella Stuart, pretender to English throne, imprisoned, escapes, recaptured.

    1647 Charles I imprisoned, still king until 1649. Tried in 1649.

    * * *

    In 614, the Edictum of Chlotacharii defined the rights of kings, nobles, and the Church. How much we have changed. Now, despite a Constitution that constrains the power of head of state, some would like to pretend the Edictum is in place. Our oath is not to any edict, but this Constitution.

    History is not set. Laws and powers change.

    In 900 English shires had county courts safeguarding rights. Despite these protections it took 315 years, until 1215 until the rights were formally recognized by the head of state in the Magna Charta.

    We can either permit what must be permitted: Enforcement of State laws against the President; or a new document shall be written to recognize the power of the State Attorney Generals to enforce state law against all federal officials, including the President.

    When the President takes an oath to enforce the law it does not mean that the President has no relationship with state criminal state law. His oath binds him to ensure the States’ right to a republican form of government is protected. Indeed, this President, if State law has no force, cannot explain why he assents to the laws of Texas which may require him to be a jury member.

    The President has not been granted any absolute power to be immune to criminal prosecutions. He has, until now, merely asserted a vague notion of immunity, which was otherwise not needed. Most Presidents respected the law and Constitution. This Congress, despite this President’s war crimes, refuses to speak on matters of Presidential war crimes. State Attorney Generals may speak on matters of Presidential violations of State laws. The President has not been delegated any power, nor granted any constitutional immunity to prosecution. He has no immunity to accountability; his privileges are not absolute, nor delegated, but remain discretionary, even if he follows the law.

    The State Attorney proceedings before the US Supreme Court against the President of the United States shall commence; and a jury shall be empanelled, in a place the Supreme Court can supervise and still conduct business, to hear the evidence of Presidential violations of State law. If convicted of violating any State law, the Jury may lawfully jail the President for such time as is afforded under the relevant state laws. The President, while jailed, shall be presumed to be incapacitated, and shall transfer his powers to the Vice President who shall remain Vice President, and exercise the powers of head of state.

    Upon completion of the Sentence, the President, if released prior to January 2009, may resume his duties as Executive. Upon release prior to January 2009, the President remains subject to criminal prosecution for other non-prosecuted crimes. If the jury’s sentence against the President is longer than January 2009, then when the new head of state takes the oath, the President, stripped of his title in January 2009 shall remain in jail until his sentence has been completed.

    The State Attorney Generals may in a separate action prosecute the Vice President for similar or other crimes. If the vice President is also convicted and jailed, the power of head of state shall fall onto the next in line. There is nothing stopping the State Attorney Generals from bringing other charges against the third in line.

    If the President wishes to avoid the above prosecution, he may resign, but he shall remain subject to prosecution under internal laws of war. Nothing Congress does or says may immunize him from prosecution by an international war crimes tribunal. Individual Members of Congress, by sharing the policymaking function and power with the Executive, are also subject to indictment by a war crimes tribunal.

    They wished this.