Lawyers UP!

[NousDefionsDoc]

And anybody else with a reasonable opinion that wants to play.

1. Is the US Constitution law? Not in the abstract sense. I say it is above law - that law arises from it.
2. Can the POTUS be impeached for "leaking" classified documents? I say no, because he is the declassifying authority.
3. Could the 25th be used to remove a President for divulging classified information? I say yes - if such disclosure demonstrates an inability to perform the duties of his office.
4. Why is the Presidential oath the only oath spelled out in the Constitution? It requires an oath or affirmation for the others - found in the US Code - but does not spell them out.

[Roguish Lawyer]

Tomorrow.

[The Reaper]

And anybody else with a reasonable opinion that wants to play.

1. Is the US Constitution law? Not in the abstract sense. I say it is above law - that law arises from it.
2. Can the POTUS be impeached for "leaking" classified documents? I say no, because he is the declassifying authority.
3. Could the 25th be used to remove a President for divulging classified information? I say yes - if such disclosure demonstrates an inability to perform the duties of his office.
4. Why is the Presidential oath the only oath spelled out in the Constitution? It requires an oath or affirmation for the others - found in the US Code - but does not spell them out.

Okay, I'll play.

1. IMHO, the Constitution is both the basis for law, and a delineation of rights which cannot be legislated.

2. The POTUS can be impeached for any offense the required number of Congressmen vote for.

3. It could be the basis for an attempt to remove the POTUS. Success depends on the number of members of Congress who will vote for it.

4. Jefferson ran out of paper.

TR

[Peregrino]

Okay, I'll play.

4. Jefferson ran out of paper.

TR

Sorry Boss - IIRC Jefferson was in France when they were writing the Constitution. He can't be blamed for that one. Try James Madison and his buds. :munchin Peregrino

[Roguish Lawyer]

And anybody else with a reasonable opinion that wants to play.

1. Is the US Constitution law? Not in the abstract sense. I say it is above law - that law arises from it.
2. Can the POTUS be impeached for "leaking" classified documents? I say no, because he is the declassifying authority.
3. Could the 25th be used to remove a President for divulging classified information? I say yes - if such disclosure demonstrates an inability to perform the duties of his office.
4. Why is the Presidential oath the only oath spelled out in the Constitution? It requires an oath or affirmation for the others - found in the US Code - but does not spell them out.

1. Yes, it is the supreme law of the land.

2. I agree with TR that you probably can be impeached for anything Congress will vote for, although the Supreme Court theoretically could entertain a suit by an impeached President against Congress alleging that the basis for impeachment was not a "high crime or misdemeanor."

3. See #2 -- probably comes down to votes, first by VP and majority of Execs, then Congress if POTUS disputes. Without looking carefully at the issue, it appears that there is less opportunity to seek judicial review.

4. Good question. I would consult Farrand to see if there is an answer there.

[NousDefionsDoc]

#2 - I understand what you are saying, but would it be with the letter and spirit? If the POTUS is the declassifying authority and he authorizes release, how is that a high crime or misdemeanor?

The they can do what they are willing to vote for aside.

Can the President be impeached for violating his oath of office without having committed a crime?

[Roguish Lawyer]

#2 - I understand what you are saying, but would it be with the letter and spirit? If the POTUS is the declassifying authority and he authorizes release, how is that a high crime or misdemeanor?

The they can do what they are willing to vote for aside.

Can the President be impeached for violating his oath of office without having committed a crime?

This is not my area, but I would think that technically he is supposed to declassify the documents, then release them. That being said, it's a "no harm, no foul" sort of thing, and there are a lot of areas of the law in which that concept governs.

I don't think you need to commit a crime to be impeached.

[Bravo1-3]

Can the President be impeached for violating his oath of office without having committed a crime?

The only specific duty set forth in the oath is to "preserve, protect and defend the Constitution of the United States" to the best of the affiants* ability.

Because it is a constitutional requirement, and because the Constitution is the highest law in the land, it would be difficult for a violation of that oath not to be a criminal act. That said, I'm sure someone can game up a scenario under which a violation of the oath of office is not criminal.

*Is "affiant" the correct word RL?

[NousDefionsDoc]

This is not my area, but I would think that technically he is supposed to declassify the documents, then release them. That being said, it's a "no harm, no foul" sort of thing, and there are a lot of areas of the law in which that concept governs.

I don't think you need to commit a crime to be impeached.
Can you give me an example of a hypothetical in which one could be impeached without having committed a crime?

BTW, I have my own theory about why the POTUS oath is the only one in there, want to hear it?

[Martin]

BTW, I have my own theory about why the POTUS oath is the only one in there, want to hear it?
Yupp! :munchin

[NousDefionsDoc]

They just came off a fight from with a monarchy. They knew how that shit worked and knew to be careful of it. And they had seen the lack results of the Articles of Confederation. My guess is they were worried about Washington or someone like him being the binder - either fear of the man or fear it would fall apart with the change. They were doing everything possible to control what they saw as the central piece on the board. They weren't scared of any other branch because they involved more than one person. No concensus. Very intelligent IMO for the times.

Or, they were looking to make The Man with an eye on Washington. I lean to the former.

Just my uneducated opinion.

[Roguish Lawyer]

They just came off a fight from with a monarchy. They knew how that shit worked and knew to be careful of it. And they had seen the lack results of the Articles of Confederation. My guess is they were worried about Washington or someone like him being the binder - either fear of the man or fear it would fall apart with the change. They were doing everything possible to control what they saw as the central piece on the board. They weren't scared of any other branch because they involved more than one person. No concensus. Very intelligent IMO for the times.

Or, they were looking to make The Man with an eye on Washington. I lean to the former.

Just my uneducated opinion.

They definitely were scared of the other branches too, but I think you may be correct about the oath for POTUS.

[Roguish Lawyer]

Can you give me an example of a hypothetical in which one could be impeached without having committed a crime?


Sure, Congress doesn't like the President's policies so they impeach him. He'd have to either refuse to recognize the impeachment (claiming it was unauthorized) or seek judicial review to challenge it. He is supposed to be removed only for bribery, treason or other high crimes or misdemeanors, but that wouldn't necessarily stop Congress from exceeding its constitutional authority.

[NousDefionsDoc]

I understand that RL, but I am talking about legal, not the real world. I know Congress can get out of control. theory man, theory.

Why weren't the Rosenbergs tried for treason instead of espionage?

[NousDefionsDoc]

They definitely were scared of the other branches too, but I think you may be correct about the oath for POTUS.
Ok.

[Airbornelawyer]

Sure, Congress doesn't like the President's policies so they impeach him. He'd have to either refuse to recognize the impeachment (claiming it was unauthorized) or seek judicial review to challenge it. He is supposed to be removed only for bribery, treason or other high crimes or misdemeanors, but that wouldn't necessarily stop Congress from exceeding its constitutional authority.
The categories are "Treason, Bribery or other high Crimes and Misdemeanors." Treason and bribery are clearly crimes, so the question is whether "other high Crimes and Misdemeanors" encompasses non-criminal activity, and if so, to what extent. "High Crimes and Misdemeanors" is a term of art from English law, and encompasses serious offenses reflecting a breach of the trust of those who put the official in power. This category can be read to cover actions not specifically in the criminal code, but the measure is their severity and political nature - generally malfeasance, not mere misfeasance.

Mere disagreement with the President's policies is insufficient. The Constitutional Convention specifically rejected a proposal to include "maladministration" as a category of impeachable offense, as that woudl make the President serve at the sufferance of Congress, and be in effect no different than a vote of no confidence in a parliamentary system. But as RL notes, the Congress is really the sole arbiter, so if they decide that presidential conduct reaches impeachable neglect of duty, then it becomes as much a political debate as a legal one (can they get enough House members to support their interpretation to impeach, and enough Senators to convict?).

This, by the way, is very different from the standards found in many state constitutions. In Alabama, one may be impeached for "willful neglect of duty, corruption in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics ..., or for any offense involving moral turpitude ..." In Massachusetts, it is "misconduct and mal-administration." In Missouri, "... crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office." Besides Alabama and Missouri, drunkenness is also a ground in both Dakotas and Oklahoma. Moral turpitude is also grounds in Oklahoma and Rhode Island (and Angel Beach High School).

Also, I think it is an open question as to whether the Supreme Court has the power to review an impeachment of a President. Impeachment may be considered a political question, and thus not justiciable. Also, the Court theoretically will have already had its input into the process, since the Chief Justice presides over the Senate's impeachment trial.

[Roguish Lawyer]

Good points, AL.

[NousDefionsDoc]

Great stuff. I'm learning a lot, thanks to all.

I still don't see how Congress would have a leg to stand on trying to impeach him if he hasn't committed a crime (as defined in the US code for example). For example, they got Clinton for perjury wasn't it? Clearly a crime under the US Code - I believe - I'm on unfamiliar ground here and tiptoeing through the minefield.

You guys know the reason I am asking right?

I know they won't, but I think they could go after the NY Times for
TITLE 18 > PART I > CHAPTER 37 > § 798

§ 798. Disclosure of classified information

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
Shall be fined under this title or imprisoned not more than ten years, or both.
and I don't think they can get the POTUS for the same thing because he has declassification authority.

I think they could go after under the above despite the 1st.

[mconrad]

I was a political science major, so take this for what it's worth:
What really matters is public opinion. Congress could impeach any POTUS if the people in their districts supported it, only a simple majority is required. The Senate, however, votes on two issues once impeached by the House--if the POTUS is guilty of an impeachable offense, and if the POTUS will be prohibited from holding future office, and a 2/3 majority is required. It's sort of worthless though to vote to prohibit holding of public office because someone's political career would be ruined if actually convicted by the Senate.

As far as what constitutes a high crime and misdemeanor, Alexander Hamilton writes in Federalist Paper 65 that an abuse of public trust is a punishable offense, which sounds somewhat weaker than a high crime or misdemeanor.

Impeachment in the US really is a big, long ordeal. Viscount Bryce compares it to a 100-ton gun: "Impeachment is the heaviest piece of artillery in the congressional arsenal, but because it is so heavy, it is unfit for ordinary use. It is like a 100-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at. Or to vary this simile, impeachment is what physicians call a heroic medicine, an extreme remedy proper to be applied against an official guilty of political crimes."

Whenever the US has begun the process of bringing out the 100-ton gun it preoccupies the country and government, makes the country vulnerable, brings on policy distortions, and damages a president's ability to lead for the rest of the term.

What should we do to fix it if anything? Something weaker than impeachment pisses me off because it would be too easy and the President could accomplish nothing, so I don't know what would be best.

[Martin]

They just came off a fight from with a monarchy. They knew how that shit worked and knew to be careful of it. And they had seen the lack results of the Articles of Confederation. My guess is they were worried about Washington or someone like him being the binder - either fear of the man or fear it would fall apart with the change. They were doing everything possible to control what they saw as the central piece on the board. They weren't scared of any other branch because they involved more than one person. No concensus. Very intelligent IMO for the times.

Or, they were looking to make The Man with an eye on Washington. I lean to the former.

Just my uneducated opinion.
I think the bold part might be better explained by the role of the different arms of government. Legislators are already bound to not implement laws contrary to the Constitution. The Judicial likewise are for interpretation and so far as it "creates prejudices", excuse my sorry english, it, I think, is not legally authorized to do so to the extent of nibbling on the Constitution. The executive, the CinC, is a more active power in need of being tamed.

Another uneducated opinion.

[NousDefionsDoc]

TITLE 50 > CHAPTER 36 > SUBCHAPTER IV > § 1861(d)

http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001861----000-.html