Welcome home, fellow Gator.

The Gator Nation's oldest and most active insider community
Join today!

Kavanaugh Hearing

Discussion in 'GC Hall of Fame' started by ursidman, Sep 4, 2018.

  1. gator_lawyer

    gator_lawyer VIP Member

    15,329
    5,336
    3,213
    Oct 30, 2017
    If Trump's sister were younger (and willing), I bet he'd nominate her. Then again, she would still be much more qualified than Miers.

    EDIT: Then again, Miers likely wouldn't have been a worse member of the Court than the man who replaced her.
     
  2. docspor

    docspor GC Hall of Fame

    5,097
    1,637
    3,078
    Nov 30, 2010
    linky?
     
    • Fistbump/Thanks! Fistbump/Thanks! x 1
  3. OklahomaGator

    OklahomaGator Jedi Administrator Moderator VIP Member

    121,323
    162,152
    116,973
    Apr 3, 2007
    That is not entirely correct. In the Minnesota Law review in 2009 he wrote that civil actions against a president to be deferred for the course of a president’s term. He wanted to extend that protection to criminal prosecution too. “In particular, Congress might consider a law exempting a President – while in office – from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel,” Kavanaugh wrote, decrying such investigations as “inevitably politicized.”

    Kavanaugh wrote that Congress can provide the check on wrongdoing by a president. “A second possible concern is that the country needs a check against a bad-behaving or law-breaking President,” he wrote. “But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.”

    Brett Kavanaugh: On Indicting a President & Impeachment | Heavy.com
     
    • Informative Informative x 2
  4. docspor

    docspor GC Hall of Fame

    5,097
    1,637
    3,078
    Nov 30, 2010
    only reading what okla posted, 'at even kissin' cousins with extremism.
     
  5. gatorpika

    gatorpika GC Hall of Fame

    5,269
    524
    2,868
    Sep 14, 2008
    I don't know how you can say it's extremist when the textual remedy in the constitution for criminal behavior by the president is impeachment At the very least given the legislative and judicial history on the subject it's an interesting question.
     
    • Agree Agree x 3
  6. PerSeGator

    PerSeGator GC Hall of Fame

    2,288
    365
    1,993
    Jun 14, 2014
    One textual remedy is impeachment, but it's explicitly not exclusive.

    "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."

    At best, you can take that clause to imply that conviction must take place before punishment according to law is available, but that's hardly a necessary conclusion.

    And, if we're just working off of the text, the same clause that allows impeachment of the president also allows for impeachment of all civil officers. So if impeachment is required prior to indictment for the president, it must be required for all civil officers, but we know that is not the case.

    The better argument (although one I disagree with) is that the DOJ is a component of the president's executive authority, and it therefore cannot prosecute him or seek to compel his actions in any way without his consent.
     
    • Like Like x 1
    • Winner Winner x 1
  7. gator_lawyer

    gator_lawyer VIP Member

    15,329
    5,336
    3,213
    Oct 30, 2017
    Of course, that wouldn't bar a special prosecutor appointed by another branch. :)
     
    • Like Like x 1
  8. gatorpika

    gatorpika GC Hall of Fame

    5,269
    524
    2,868
    Sep 14, 2008
    Good thoughts. I guess I would disagree that the implication that impeachment must proceed conviction is "at best". One might ask why there is an impeachment clause at all if the courts should handle such matters. The clause clearly states that impeachment refers to criminal matters (high crimes and misdemeanors). So you have two coequal branches with the power to remove the president? Wouldn't there be a double jeopardy issue there? What happens if one body acquits the president while the other convicts? Traditionally the courts defer political questions related to another branch, but now you ask them to stand in judgement of their peer? The whole system was carefully balanced so that the branches didn't step on one another or achieve advantage, yet in maybe the most powerful act they could take up you would say that they delegated an excess of power to the other two branches? You also had two memos created by the DOJ that came to the same conclusion. Granted they were created by the DOJ of presidents potentially facing impeachment, but you don't create those types of documents unless it's an impending issue. In practice during Watergate the special counsel also refused to ask for an indictment, believing that impeachment should proceed a trial.

    The same clause does provide for the indictment of other civil officers, but there is an obvious difference as the president is the embodiment of the executive branch. It's clearly seen as different. There is also an argument that conviction or even constructive removal through arrest could be seen as contrary to the impeachment clause. Contrary to Kavanaugh's views, the SCOTUS ruled in the Jones case that the president can be sued civilly while holding office. In any case it's a gray area of law and the characterization of Kavanaugh's ideas as "extremist" was over the top IMO as it reflected the thinking of the DOJ and a great many other people as well.
     
    • Informative Informative x 1
    • Creative Creative x 1
  9. gator_lawyer

    gator_lawyer VIP Member

    15,329
    5,336
    3,213
    Oct 30, 2017
    No. Just like there's no double jeopardy issue when you're charged at both the state and federal levels.
     
  10. gatorpika

    gatorpika GC Hall of Fame

    5,269
    524
    2,868
    Sep 14, 2008
    And if it's a federal crime?
     
  11. rivergator

    rivergator Too Hot Mod Moderator VIP Member

    34,235
    1,510
    2,258
    Apr 8, 2007
    He's apparently had mixed views on it. From the Post:
    But it isn't really clear at all that he believes the president is immune.

    Analysis | Does Brett Kavanaugh think the president is immune from criminal charges?
     
    • Like Like x 1
    • Informative Informative x 1
  12. gatorpika

    gatorpika GC Hall of Fame

    5,269
    524
    2,868
    Sep 14, 2008
    What he is advocating for is congress to create the immunity. He mentions that there might be constitutional issues in a 1998 article he wrote that Wapo was pointing to, but doesn't rely on that. He was on both sides of the issue as a member of the Starr investigation and then as a member of the Bush administration. The article also went on to say that his views aren't out of the mainstream:

     
    • Agree Agree x 1
  13. citygator

    citygator VIP Member

    9,473
    2,008
    3,053
    Apr 3, 2007
    Charlotte
    Hmmmm. Can’t trust any of the righties not to be crooked.


    I Wrote Some of the Memos That Brett Kavanaugh Lied to the Senate About. He Should Be Impeached, Not Elevated.
     
    • Informative Informative x 2
  14. gator_lawyer

    gator_lawyer VIP Member

    15,329
    5,336
    3,213
    Oct 30, 2017
    So what? Impeachment is political. There's no punishment beyond losing your office. Look at Walter L. Nixon if you want an example of someone being convicted and then impeached.
     
  15. JerseyGator01

    JerseyGator01 GC Hall of Fame

    14,149
    93
    588
    Apr 10, 2007
    Oh, so now Kamala Harris is concerned about conflicts of interest. Where was she during the David Daleiden hearings when a judge with close ties to Planned Parenthood was appointed in her state?

    HYPOCRISY RULES!!!!!
     
  16. duchen

    duchen VIP Member

    13,373
    5,033
    3,208
    Nov 25, 2017
    Judges close to Planned Parenthood are disqualified from appointments?
     
    • Winner Winner x 1
  17. duchen

    duchen VIP Member

    13,373
    5,033
    3,208
    Nov 25, 2017
    The second part expresses the next step; that the check is impeachment and the President is immune.
     
    • Disagree Bacon! Disagree Bacon! x 1
  18. duchen

    duchen VIP Member

    13,373
    5,033
    3,208
    Nov 25, 2017
    Agreed. Impeachment applies outside the context of the President.
     
  19. gator_lawyer

    gator_lawyer VIP Member

    15,329
    5,336
    3,213
    Oct 30, 2017
    No . . .
    [​IMG]
     
  20. PerSeGator

    PerSeGator GC Hall of Fame

    2,288
    365
    1,993
    Jun 14, 2014
    There's no double jeopardy issue, since the Fifth Amendment limits that doctrine to criminal prosecutions. It doesn't apply to civil, administrative, or impeachment cases --"nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." So, for the same conduct, you could conceivably face all four types of penalties without running afoul of the double jeopardy clause (and that's even before you get into State-level charges).

    The other thing to keep in mind is that no Court at law can actually remove a person from office. Impeachment/expulsion (for congressmen) are the sole avenues for that. It would be a bit odd to win an impeachment trial but then still get thrown in jail on criminal charges (since, as you point out, you would effectively be prevented from exercising the powers of your office while in jail).

    But I'm not sure that alone suggests a criminal trial must wait until after impeachment proceedings. Senator Menendez, for instance, went the opposite direction. He was indicted first and kept his seat while his criminal trial went forward. Had he been convicted, the Senate likely would have moved to expel him. I haven't done a deep dive into the history of successful impeachments, but I suspect many followed that same sequence (criminal trial first, then impeachment). The situation obviously gets more delicate when you're talking about the president, rather than any other civil officer, which is where the DOJ memos come in.

    I don't think Kavanaugh's view that criminal charges should wait until after the presidency is particularly extreme. However, he goes beyond that and suggests that everything should be postponed, even investigations and any kind of criminal or civil process. That's extreme, because it places the president as completely above the law while in office. You can point to impeachment, but realistically, an impeachment without an investigation is a dead letter.

    If the Courts could not require Nixon to turn over the tapes, and if the special counsel was otherwise barred from investigating his conduct, would he have ever resigned or faced any consequences for his actions? Doubtful, in my mind. And it becomes even more doubtful after the president leaves office, since investigating and prosecuting a former president (particularly by an opposing party) reeks of banana republic-style political retribution.