Wikipedia:Reference desk/Archives/Humanities/2020 September 6
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September 6
editIndicting a sitting president
editWhen a US state-level prosecutorial office, after an investigation, finds that there is substantial evidence that a person committed a felony, they will normally seek an indictment or file charges. What if that person is a sitting US President? The DOJ apparently has a long-standing rule against this, based on a 2000 opinion issued by the DOJ's Office of Legal Counsel stating that a sitting US President cannot be federally indicted. But state-level prosecutors are not bound by that rule. Is there any legal impediment to them indicting a president – divorced from the non-legal issue whether doing so is prudent or opportune? --Lambiam 18:20, 6 September 2020 (UTC)
- Putting aside issues like whether the President's absolute immunity to prosecution while in office extends to state courts (the fact that an appeal of such a state court prosecution would eventually find its way to the federal Supreme Court is important), there is at least one federal statute extending removal jurisdiction to criminal prosecutions of federal officials. Thus, a state court prosecution could be removed to federal court and once there summarily dismissed without any trial on the merits. 199.66.69.67 (talk) 20:16, 6 September 2020 (UTC)
- I wonder if courts would deem this to apply also to defendants who have left office, when pertaining to acts committed while in office and claimed to have been in the performance of the duties of that office. --Lambiam 07:37, 7 September 2020 (UTC)
- No idea, I haven't looked at caselaw. The fun part about removal jurisdiction is that once a notice of removal is filed, the case is transferred by operation of law to the federal court and there is at the very least I believe there is jurisdiction to remand the case back to state court in the event removal jurisdiction is found not to exist. The state court and prosecution can't prevent removal; the prosecution can can only request a remand. So at least in theory, a criminal defendant that intends to raise an "official duties" defense should be able to remove the case to federal court. 199.66.69.67 (talk) 09:07, 7 September 2020 (UTC)
- Six score and sixteen days from now hordes of lawyers may be poring over case law to find out. --Lambiam 13:22, 7 September 2020 (UTC)
- No idea, I haven't looked at caselaw. The fun part about removal jurisdiction is that once a notice of removal is filed, the case is transferred by operation of law to the federal court and there is at the very least I believe there is jurisdiction to remand the case back to state court in the event removal jurisdiction is found not to exist. The state court and prosecution can't prevent removal; the prosecution can can only request a remand. So at least in theory, a criminal defendant that intends to raise an "official duties" defense should be able to remove the case to federal court. 199.66.69.67 (talk) 09:07, 7 September 2020 (UTC)
- I wonder if courts would deem this to apply also to defendants who have left office, when pertaining to acts committed while in office and claimed to have been in the performance of the duties of that office. --Lambiam 07:37, 7 September 2020 (UTC)
- This is about a motion to change, after a prior removal, not only the court but also the defendant, pursuant to 28 U.S.C. § 2679(d)2. The statute states that "certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal", where said certification is "certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose". [My emphasis. --L]. But this need not be the AG at the time of the incident. --Lambiam 11:46, 9 September 2020 (UTC)
- §2679 deals with civil actions, not criminal actions (and Chapter 171, which contains that section, deals with tort proceedings in particular). I don't believe AG action is required for removal under §1442. Really, if I were going to seriously research this I'd try to find a law library that carries updated versions of Moore's Federal Practice and (to a lesser extent) Wright & Miller's Federal Practice and Procedure. 199.66.69.67 (talk) 00:26, 10 September 2020 (UTC)
- This is about a motion to change, after a prior removal, not only the court but also the defendant, pursuant to 28 U.S.C. § 2679(d)2. The statute states that "certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal", where said certification is "certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose". [My emphasis. --L]. But this need not be the AG at the time of the incident. --Lambiam 11:46, 9 September 2020 (UTC)