10/03/2005

Daily Kos: Analysis: Can Patrick Fitzgerald Indict Bush and Cheney?

Analysis: Can Patrick Fitzgerald Indict Bush and Cheney?
by DC Pol Sci [Subscribe]
Sun Oct 2nd, 2005 at 13:14:45 CDT

If Patrick Fitzgerald is indeed either contemplating the indictment of George W. Bush and Dick Cheney or contemplating naming them as unindicted co-conspirators in the plot to out Valerie Wilson as a CIA agent, we are entering uncharted legal waters. The one example history presents us, that of Watergate, differs in a very important respect: Leon Jaworski, the Watergate special prosecutor, had a House Judiciary Committee that was willing to take action and provide a remedy in the form of impeachment. Since the current House Judiciary Committee is obviously not so inclined, Fitzgerald is essentially faced with three options: 1) Indict Bush and Cheney and provoke a constitutional crisis on the question of whether a sitting President is indictable; 2) Name Bush and Cheney as unindicted co-conspirators and watch them get off scot free, to be tried only in the court of public opinion; or 3) Do nothing and let them get off without even public criticism.

Can a sitting President be indicted?

* DC Pol Sci's diary :: ::
*

This was discussed by Jaworski et al. back in the Watergate era, and they deliberately decided to avoid the question by going the unindicted co-conspirator route, hoping to press Congress into action so that it would be unnecessary to make precedent on the issue. They succeeded, and we were rid of Nixon, who resigned rather than face certain impeachment.

In the present era, the question threatens to bring on a constitutional crisis of unprecedented proportions, because the Republican House will almost certainly not take action in 2005 the way the Democratic House did in 1974 (with bipartisan support, mind you). What remedy will Fitzgerald have?

Here is the issue, as brilliantly outlined by Woodward and Bernstein in The Final Days:

The Constitution said clearly that if a President were impeached and removed from office, he was subject to criminal prosecution. But it was silent on the question of whether an indictment could be brought while he remained in office. If the President were indicted, his lawyers would challenge the indictment. The White House arguments would be strong . . . . What would the President do if someone started a nuclear war--ask for a recess?

Also the question of indictment would doubtless go to the Supreme Court. This would delay the trial of the other defendants charged in the conspiracy. . . .

There was the awful thought of an arraignment. How would Jaworski get a sitting President into court if, as seemed likely, he refused to come voluntarily? Would the special prosecutor send the marshals to pick him up at the White House and drag him to court? A ridiculous notion--but if it got down to raw power, the President had the armed forces at his disposal.

Bob Woodward and Carl Bernstein, The Final Days. New York: Avon, 1976, pp. 115-16 (paperback edition).

Though I can't find the quote for this one (I can swear I read it at some point), Jaworski believed that it clearly could not be the case that a sitting President could not be indicted for anything, however. Were that true, and were impeachment the only remedy for violations of law by the President, the President could forestall his impeachment permanently by serially murdering each and every Member of the House of Representatives. Since he couldn't be indicted or charged with the murders, he would get off scot free.

So the question, then, became at what point is a President indictable?

Daily Kos: Analysis: Can Patrick Fitzgerald Indict Bush and Cheney?

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