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President Bill Clinton was impeached by the House in December, 1998, and acquitted of the charges of perjury and obstruction of justice relating to the Paula Jones and Monica Lewinsky matters by the Senate on February 12, 1999. The House Republicans conducted no committee investigations before seeking to impeach Clinton, relying entirely on the Starr Report and the revelations from the Lewinsky scandal.

Impeachment Can Teach Us

The House voted to begin impeachment proceedings on October 8, 1998, after receiving the Starr Report in September, 1998, and voted to impeach 228-206 (lying under oath) and 221-212 (obstruction of justice) during the "lame duck" Congress on December 19, 1998. In the November, 1998 election, the Democrats picked up five House seats, although the Republicans would still control the next Congress.

In April, 1999, two months after his acquittal, Clinton was cited for civil contempt of court for willful failure to testify truthfully in the Paula Jones sexual harassment suit and received a $90,000 fine. He earlier had settled the Paula Jones case for $850,000, and the day before leaving office in January, 2001 he agreed to a plea bargain calling for a five-year suspension of his Arkansas law license and a $25,000 fine, with then independent counsel Robert Ray agreeing that he would end his investigation without filing any criminal charges for perjury or obstruction of justice against Clinton.

In the 2000 election, George W. Bush was selected to be President by the Supreme Court, and the Senate split 50-50 until Republican Senator Jim Jeffords of Vermont left the Republican Party in May, 2001 and caucused with the Democrats thereafter. The Republicans remained in control of the House, and did so until the 2006 election, when both Houses became Democrat-controlled.

This history is recounted as a possible predictor of what will happen if (and after) Donald Trump is impeached.

This history is recounted as a possible predictor of what will happen if (and after) Donald Trump is impeached. Several points must be made:

  • The impeachment and acquittal of Clinton had a minor effect on the later elections in the House and Senate. The House remained in control of the Republicans until 2006, and the Senate briefly became Democrat-controlled after Sen. Jeffords left the GOP, but soon returned to GOP control, and Republican George W. Bush succeeded the termed-out Clinton as President.
  • A number of the GOP House "managers" of the impeachment trial in the Senate are still in Congress, including now Sen. Lindsay Graham of South Carolina.
  • After Clinton was acquitted in the Senate, he was tried for civil contempt of court, copped a plea, and was fined, while still President.

In the Mueller Report, (Vol.II, p. 1), Mueller stated that "we determined not to make a traditional prosecutorial judgment. The [DoJ] Office of Legal Counsel (OLC) has issued an opinion finding that 'the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions' in violation of 'the constitutional separation of powers'…this Office accepted OLC's legal conclusion for the purposes of exercising prosecutorial jurisdiction", citing A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222 (2000)

I have taken the time to read carefully this single-spaced 38-page document, and I believe that it is not dispositive of the present situation involving President Trump and his possible collusion/conspiracy and obstruction of justice activities during the 2016 Presidential campaign and after as President. Here is what I found:

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  • In 1973, during the Nixon Watergate proceedings, the DoJ concluded that the indictment or criminal prosecution of a sitting President would undermine his role as head of the executive branch of government. At that time, Vice President Spiro Agnew was being investigated by a grand jury for criminal conduct before he became Vice President. Agnew claimed that, as a sitting Vice President, he was constitutionally immune from indictment and prosecution. In its 1973 opinion, the DoJ concluded that unlike the President, the Vice President could be subject to criminal process while in office.
  • In 2000, after President Clinton's acquittal of the impeachment charges in 1999, and the civil contempt charges resulting from the Paula Jones case, there was a threat that independent counsel Robert Ray would bring criminal charges against Clinton. In fact, in Clinton v Jones, 520 U.S. 681 (1997), the Supreme Court ruled that President Clinton did not enjoy constitutional immunity from defending civil litigation focusing primarily on misconduct unrelated to any of his official duties as President and occurring before he was elected to office.
  • Faced with the threat of criminal prosecution resulting from Clinton's actions in the Paula Jones and Monica Lewinsky matters, the DoJ reviewed the 1973 opinion and decided that the Nixon Watergate Supreme Court cases, and particularly the Paula Jones case, "which held that the President is not immune from at least certain judicial proceedings while in office, even if those proceedings may prove somewhat burdensome, does not change our conclusion in 1973 and again today that a sitting President cannot constitutionally be indicted or tried." (Opinion, p. 238)
  • Forward to 2019 and 2020: President Trump has stated publicly that he could shoot someone on Fifth Avenue and, as President, get away with it. What if he was conclusively proven to have molested a young Epstein-provided girl, or there was evidence that he directly colluded with Putin to become President, or that he benefitted during his Presidency by receiving millions of foreign dollars, is the only available remedy to be impeached by the House and tried in a Republican-controlled Senate unlikely to find the 67 votes needed to convict?
  • Watergate Special Prosecutor Leon Jaworski argued that it was not settled as a matter of constitutional law whether a sitting President could be subject to indictment. In his Reply Brief for the United States in U.S. v Nixon [as quoted in Footnote 14 to the 2000 DoJ Opinion at p. 238-239], he "rejected the President's contention that either the historical evidence of the intent of the Framers or the plain terms of the Impeachment Judgment Clause foreclosed the indictment of a sitting President as a constitutional matter…the Special Prosecutor argued that to the extent some criminal offenses are not impeachable, the recognition of an absolute immunity from indictment would mean that 'the Constitution has left a lacuna [a gap] of potentially serious dimensions'…The Special Prosecutor ultimately concluded that 'whether these factors compel a conclusion that as a matter of constitutional interpretation a sitting President cannot be indicted for violations of federal criminal laws is an issue about which, at best, there is presently considerable doubt.'" And to date, there is NO court opinion addressing this issue directly. The only "authority" is this old DoJ Opinion. 
  • An interesting aspect of the DoJ Opinion relates to the 25th Amendment, which provides that the Vice President along with a majority of the executive branch's cabinet officers, or Congress, could declare that the President is "unable to discharge the powers and duties of his office", with the result that the Vice President temporarily assumes the status and powers of Acting President. The DoJ Opinion stated that the Framers of the 25th Amendment did not consider the possibility of a criminal prosecution of a sitting President as a contingency calling for the use of the 25th Amendment, but admitted that the undefined terms "unable" and "inability" apply to "anything that is imaginable" (DoJ Opinion, Footnote 19). The Opinion concluded (p. 249) that the 25th Amendment "should not be understood sub silentio to withdraw a previously established immunity and authorize the imprisonment of a sitting President." But we are not necessarily talking about imprisonment of a sitting President, but rather his temporary removal from office during the pendency of a serious criminal proceeding. 
  • The lengthy DoJ Opinion tries to distinguish the disruption of the President's daily activities resulting from civil litigation as against criminal litigation. This logic seems tortured to me, as both forms of litigation can be time consuming for a President ensnared in such matters. Throughout his business life, Trump has been immersed in legal cases, and they continue today. And Trump in his business has always used an army of lawyers to protect him against any obstacle to his preferred course of action. (Maybe some of his many golf days and trips to Mar-a-Lago would have to be curtailed during the coming litigation.) 
  • The DoJ Opinion does recognize the impairment of certain governmental interests by its policy that a sitting President cannot be indicted: the expiration of the statute of limitations if the prosecution is indefinitely delayed (which could be as long as 10 years!); the prejudicial loss of evidence over time; and the subversion of the important interest in maintaining the "rule of law". But the DoJ Opinion found that these reasons were not important enough to change their policy. 
  • Finally, the activities of the New York Attorney General's Office may become increasingly important, as the crimes of the Trump Foundation and the Trump Organization become the subject of indictments. Recall that the CFO of the Trump Organization, Alan Weisselberg, has been granted immunity from prosecution to tell all. What has he disclosed to the state and federal prosecutors in New York about Trump? Would the Trump DoJ try to stop a New York State prosecution of Trump which has nothing to do with his Presidential activities? 

The DoJ Opinion finally concluded that "a sitting President is immune from indictment as well as from further criminal process. Where the President is concerned, only the House of Representatives has the authority to bring charges of criminal misconduct through the constitutionally sanctioned process of impeachment." (DoJ Opinion, pp. 259-260)

ted vaill

So Nancy, if you agree with this, DO IT!!! If you don't, DO IT ANYWAY!!!. The formal impeachment inquiry process must begin, after Mueller testifies. Let the chips fall where they may. You won't be voted out of office or lose your Speakership.

Ted Vaill

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