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No. of Recommendations: 9
This week I watched CNN's rerun of "Assault on Democracy" about January 6th.

It is quite obvious that Trump lead the insurrection. Even Mitch McConnell and Kevin McCarthy stated so publicly before they went back into Republican La-La Land.

If anyone else did what Trump did, wouldn't they be tried, convicted and put in jail? Does this mean that, because he was still President, he was immune from prosecution? What if he had done something even more outrageous, like shooting somebody in plain sight on Pennsylvania Avenue?

Question. Is impeachment the only way that a president can be punished?
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No. of Recommendations: 7
If anyone else did what Trump did, wouldn't they be tried, convicted and put in jail? Does this mean that, because he was still President, he was immune from prosecution? What if he had done something even more outrageous, like shooting somebody in plain sight on Pennsylvania Avenue?

Question. Is impeachment the only way that a president can be punished?


Oooh - legal questions! The super-short answer to your questions are: 1) No; 2) Probably; 3) Probably; 4) No.

The first question is the most complex, but it's pretty likely that no one would be prosecuted for doing what Trump did - whether they were President or not. Not all terrible things are crimes. It's not a crime to give a speech to a crowd, even if that crowd later riots, unless you specifically commit the elements of the crime of incitement (or whatever the penal code in that jurisdiction calls it). Given the widespread use of martial metaphor in political speech ("Fight for $15" or the "War on Poverty"), the use of such terms is not going to be found to be incitement. It's not a crime to lie to that crowd and tell them the election was fraudulent. It's not a crime to encourage members of Congress to refuse to certify the results of an election, or to encourage a crowd to put political pressure on those Congressfolk to do so. It's not a crime to claim that an election was rigged or invalid. As long as you're not doing any of those things in a way that constitutes a separate crime itself (like bribing an official), you're not subject to prosecution. And while it's a terrible dereliction of duty, it's not a crime for a President to decline to use the powers of his office to stop a riot.

As far as immunity, the DOJ has internally taken the position that a sitting President can't be prosecuted while in office. The theory is that separation of powers means that the judicial branch can't interfere with the executive performing his duties. A civil suit wouldn't necessarily do that - you can fashion the procedures for a civil suit so that it doesn't interfere with the execution of the office. But there's no real way you can treat a President like a criminal defendant in a way that allows him to do everything a President typically does (for example, being able to travel all around the country and indeed the world).

However, that doesn't mean that impeachment is the only possible punishment - because once the President is out of office, immunity from prosecution ends. It's just that impeachment has to come first; or if he's not impeached, the end of his term in office. Then he's subject to being prosecuted.

So the medium answer is that any ordinary person who gave the exact same remarks that Trump did at the rally would probably not be prosecuted, a President who committed a crime while in office probably would be immune from prosecution until he left office, but he would be punishable with criminal charges after he left office.

Albaby
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One very minor nit to pick:

However, that doesn't mean that impeachment is the only possible punishment - because once the President is out of office, immunity from prosecution ends. It's just that impeachment has to come first; or if he's not impeached, the end of his term in office. Then he's subject to being prosecuted.

By "impeached" in this paragraph, I assume you mean "impeached AND removed from office." As we've all learned over the last few years, impeached doesn't mean removed. It just means that the House passed articles of impeachment. The President isn't actually removed from office until the Senate votes to do so. Until the President it removed, he (or she - one of these days) still has the traditional presidential immunity.

But I'm sure you know all that and were just using the common shortcuts in terminology.

--Peter
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Thank you for that detailed response, albaby1.

OK....so it seems clear to ME that the actions of the mob were a direct result of Trump's speech. If I understand you correctly, he's still not subject to prosecution because all he did was give that speech. Could you give me an example of what ELSE he would have had to do in order to be subject to prosecution?

Thanks.
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Could you give me an example of what ELSE he would have had to do in order to be subject to prosecution?

Most directly, he'd have to have included in his speech a direct call for the audience to break into the capital and/or to use violence (or the threat of violence) against Congress. That would support an indictment for incitement, and perhaps conspiracy to commit. Because there's such a widely established tradition of using martial metaphors to describe perfectly legal political action (describing political contests using terms like "fights," "battles," or even "wars"), prosecutors cannot prove that the use of such terms were intended by the speaker, or understood by the audience, as calls for physical violence rather than political action.

Trump also could have taken actions outside of the speech itself that could give rise to prosecution, of course. For example, if he had met with Proud Boy leaders and specifically discussed a plan to break into the capitol and threaten Congresscritters, that would obviously be a criminal offense. But so far, there's no indication that he did anything like.

Albaby
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