Can Kavanaugh really protect the President from being impeached?

Good question….

No, you can’t get people on ex-post facto laws. You have to deal with the law as it was at the time of the offense.

And Kavanagh will do nothing one way or another on impeachment.

The Supreme Court has no role. The House brings the charges and the Senate votes on whether to impeach or not. The SC is silent in the process.

Trump brought Kavanaugh in because he thinks Kavanaugh can protect him from prosecution.

Trump can’t be prosecuted

And they still haven’t found a crime.

Last I heard, they were working on getting him to testify so they can find something to label as perjury.

Think about this for a second..

Trump can’t be prosecuted

How did you come to that conclusion? If it was President Clinton would you like the same standard applied to her?

Can he, potentially, be impeached, and then, again potentially, be prosecuted?

That’s why Trump picked him.

@Yellowdog . Yes. I think that will be a primary tactic. To get Trump to testify. I think he would hang himself quickly too. His overconfidence, in his abilities, will make it easy to lure him into that trap.

It’s important to keep in mind, that impeachment, is just the process, and is far from a guarantee to work. Something new, will need to surface, to get enough support just to start the process.

Then. There’s Trump. He could offer pardons , to those who won’t hurt him. He thinks he can pardon himself. His lack of concern for appearances, keeps all kinds of nefarious strategies on the table.

No. We pretty much have to hope they get something good on Don, and that he would retire before facing charges. Like Nixon.

“Can Kavanaugh really protect the President from being impeached?”

Not directly, but the Supreme Court would inevitably end up ruling on any legal impasse that arose over the course of the Mueller investigation. Can President Trump fire Mueller? Can he sue to end the investigation early? Can Mueller compel Trump to testify? The reason why Kavanaugh is of special relevance here is that he’s on record saying that Morrison v. Olson (1988)—in which the Supreme Court upheld the constitutionality of independent counsels—ought to be overturned, and has even said that he wants to “put the final nail” in its coffin.

Now, it is important to note that the independent counsels upheld in Morrison were authorized by Title VI of the Ethics in Government Act, which expired in 1999. So Kavanaugh’s objections to that decision do not necessarily apply to the regulation under which Mueller was appointed (CFR Title 28, Chapter IV, Part 600). On the other hand, Morrison was decided 7–1 (with Antonin Scalia as the sole dissenter), which places Kavanaugh on the edges of Supreme Court jurisprudence and raises questions about his views on stare decisis. Furthermore, Kavanaugh has expressed a more general hostility to the whole notion of investigating (and indicting) a sitting president since his experience working for Ken Starr during the Bill Clinton investigation.

It is the combination of Kavanaugh’s opposition to Morrison and his general hostility toward investigating a sitting president that has some people worried that Trump is attempting to place an advocate for himself on the Court in case the Mueller investigation starts looking bad for the president. Obviously, he would need to get the other four conservatives on his side, but that’s easier for him to do as a member of the Court than as a petitioner.

…I always knew you were smart @SavoirFaire.

the Legislative Branch can re-write any law and change it

If laws don’t follow the Constitution, the courts can strike them down. The three branches are interdependent, and hold some power over each other.

The courts rule on the legality of laws passed by Congress and actions taken by the Executive.

Congress passes bills and can impeach the president and federal judges.

The president can veto Congresses bills or sign them into law. The president appoints judges.

Trump can’t be prosecuted. Why is that?

@yellowdog is that because he “can walk on water”, or at least he says he can?

^I’ve heard that before too. That he can’t be prosecuted. I honestly don’t know what to believe anymore…

He can be impeached !

@Pandora “I just looked up if the Supreme Court is the final word on the law of the land and found out that the Legislative Branch can re-write any law and change it.”

As @Call_Me_Jay has already pointed out, it isn’t quite this simple. In order to overturn a Supreme Court decision, Congress would have to propose an amendment to the US Constitution and the states would have to ratify it. This requires a two-thirds majority in both the House of Representatives (i.e., 290 “yea” votes) and the Senate (i.e., 67 “yea” votes) and a three-fourths majority of the states (i.e., 38 “yea” votes).

Technically, there is also an option where the states can begin the proposal process by getting two-thirds of the state legislatures to call for a constitutional convention. This has never happened, however, and is more likely to happen due to a conflict between state and federal governments than due to a conflict between Congress and the Supreme Court.

@Tropical_Willie “Trump can’t be prosecuted. Why is that?”

We actually do not know whether or not a sitting president can be prosecuted. There are conflicting legal theories, and it has never been tested in court. For obvious reasons, the Trump administration (along with basically every presidential administration in US history for whom the issue arose) holds to the theory that a sitting president cannot be prosecuted. In fact, they go further and say that he cannot even be indicted.

The argument is largely centered on Article I, Section 3, Clause 7 of the US Constitution:

“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.”

Specifically, it’s the “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” part that’s at issue. Those who say that a sitting president cannot be prosecuted argue that “the Party convicted” means that a sitting president must be impeached in the House and convicted by the Senate before they can be “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Those who think that a sitting president can be prosecuted argue that “shall nevertheless be liable and subject to” is the relevant part of the clause, and that referring to “the Party convicted” is just a way of affirming that impeachment in the House and conviction by the Senate is not a substitute for civil and/or criminal liability. In support of this, they point to the fact that Article I, Section 3, Clause 7 is not just about the president (Senators and Representatives can be impeached and convicted, too), and that Senators and Representatives are not shielded from indictment or prosecution while in office.

One last complication: the US Department of Justice—under whose authority Mueller operates—has long been of the opinion that a sitting president cannot be indicted or prosecuted. The Office of Legal Counsel reached this conclusion in 1973 and reaffirmed it in 2000 (relevant source document). But this conclusion is based largely on the interpretation of Clause 7 by Alexander Hamilton (who is the origin of the claim that “the convicted Party” means indictment and prosecution cannot occur until after impeachment and conviction) as presented in The Federalist Papers (which are illuminating, but not legally binding).

But while this is the official position of the Department of Justice, nothing actually prevents Mueller from attempting to indict President Trump and sparking a protracted legal battle. The Office of Legal Counsel’s conclusion is an opinion, and whether or not that opinion is correct is a matter for the courts (or in this case, the US Supreme Court).

^^ I think I just had a “policy wonk” wet dream! Thanks @SavoirFaire for the well thought out, and informative post.

@johnpowell I really like the idea of Elizabeth Warren in the Executive office. But I still don’t think the US has the self-knowledge to elect a women to the big job. Too much misogyny, still.

@SavoirFaire Great answer. How would it work if the legislative branch finds that Trumps Presidency is illegitimate because he conspired with another nation and domestically to win the election? Could they declare it illegitimate?

The Constitution is not clear on whether the President can be charged with a crime. The matter should be legally clarified, which would require a constitutional amendment. Unfortunately, to keep partisan politics out of the picture, the amendment would only apply to presidents after Trump.

He may not be able to be prosecuted as a sitting president, but you can bet the feds will be watching him like a hawk once he becomes a civilian again. He’ll wind up in jail sooner or later.

^I’m not that optimistic. I wager he sits, until at least 2020, and maybe after… It has NOTHING to do with Trump being worth a crap. It’s more circumstantial.

I mean, after he is no longer president they’ll be watching him. He won’t be protected any longer.

In the real world, the bad guys win, a lot. Don’t hold your breath that Don will ever do time….

The argument is largely centered on Article I, Section 3, Clause 7 of the US Constitution:

The clause clearly and specifically regards “Cases of Impeachment”. It’s ridiculous to claim it applies outside that process.

A criminal indictment in a federal or state court is not impeachment.

I looked a the Justice Dept PDF linked by @SavoirFaire.

Right up front they reject the argument that that Impeachment Clause prevents criminal indictment of the president – “The Impeachment Judgment Clause could not itself be said to be the basis for a presidential immunity from indictment or criminal trial.”

The paper does not lay down a solid legal reason. They essentially say, “taking president to court might impinge on the separation of powers, we’re not sure. Butt certainly it would be very disruptive.”

But a solid legal basis isn’t necessary with the right-wing ideologues on the bench. As we saw with Bush v. Gore, the activist judges appointed by the GOP feel no restraint when it comes to making an extralegal judgment for their team.

@Pandora “How would it work if the legislative branch finds that Trump's Presidency is illegitimate because he conspired with another nation and domestically to win the election?”

In such a case, Congress has two primary options: censure and impeachment/conviction. Censure is a formal condemnation issued by the House, the Senate, or both. While it is a public expression of disapproval and gets entered into the Congressional Record, it has no formal consequences. A censure could include a claim that the administration is illegitimate as part of its text, but such a declaration would have no legal force.

If Congress decides that the administration is illegitimate and wants to do something consequential about it, then first someone (such as a Representative or the special counsel) would have to present charges to the House Judiciary Committee. If the Judiciary Committee finds the evidence sufficient, it drafts and debates articles of impeachment until it is ready to present them to the full House.

The full House of Representatives then debates and votes on the articles of impeachment. If the articles of impeachment get a simple majority (50% plus one, or 218 “yea” votes), then the president is impeached. But despite how we often use the word, impeachment is not removal from office. Instead, it is analogous to being indicted by a grand jury.

Once a president has been impeached, the Senate conducts a trial (which is presided over by the Chief Justice of the Supreme Court). This trial proceeds in much the way that a normal trial would, where each side has the right to present evidence and call witnesses. If the Senate were to convict the president, he would then be removed from office. Unlike with articles of impeachment, however, conviction in the Senate requires a two-thirds majority (i.e., 67 “yea” votes).