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Elizabeth de la Vega @Delavegalaw
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Law professor Garrett Epps interviewed six scholars about the indictment of a sitting president issue. Here's what they said: **OSU Prof Peter Shane, a separation of powers expert, said the SC should begin with OLC opinions, but the issue was so imp't, it required a "complete 1/
OSU Prof Shane also said he found OLC opinions that indicting POTUS wd be too disruptive "not very persuasive," given that Constitution clearly allowed disruption by impeachment, would an indictment be “more destabilizing than impeachment?” 2/
***Former OLC head Walter Dellinger said history & caselaw lead to "a scoreless tie." He noted that Jaworski skirted the problem by including Nixon as unnamed unindicted coconspirator. Finally, he noted "no expertise" can answer the question; it's "a matter of choice." 3/
***Stanford Law School Sup Ct. expert, Prof Pam Karlan, agreed the Constitution offers no answer. She finds institutional precedent [OLC opinions] less imp't than "What are the big values of the Constitution? Will the country fall apart if we do this? Is it really a bad idea?" 4/
***Univ. of Cincinnati Law Prof Verna Williams found Sup Ct. precedent, U.S. v. Nixon and Clinton v. Jones, most persuasive. Given that SCt has held presidents are not immune from legal process while in office, she reasoned, no president should be above the law. 5/
***Univ of Denver Crim Pro Prof Nancy Leong considers it an issue of prosecutorial discretion. Both "English & American law for centuries have assumed that a prosecutor may weigh the needs of justice & of the system as a whole in deciding which cases to pursue...6/
Prof Leong thinks SC should function the same way: "Built into the discretion of SC is the likelihood that the legislature is going to undertake the function provided.” What, then, should a prosecutor do “if the legislature is not providing a check?” 7/
UVA Con Law Prof Saikrishna Prakash agrees the Constitution is silent, tho it provides congressional immunity. He says there's no reason for a constitutional solution... Indicting a [POTUS] might be a crazy thing to do; but “Constitution can allow crazy things to happen.” 8/
***Then there's @profepps. Here's his conclusion after hearing from the experts "I incline toward Prakash’s view. Presidential indictment & prosecution is, in a sense, the Schrödinger’s Cat of Article II." 9/
"We just don’t know," says @profepps, "and we won’t know, whether it’s allowed until we open the box—that is until evidence leads some prosecutor to decide that a sitting president, in the interests of justice and national survival, must face indictment while in office." 10/
Last, says @profepps, "[I]f I had clear & convincing evidence that a president had violated major criminal laws, I would do what prosecutors do: Go to the GJ & ask for a “true bill” of indictment...[W] hen the dust settled, we’d finally know the answer." I wholeheartedly agree.
One amendment here: The standard for return of an indictment is probable cause, but, in such a case and, indeed, in every case, prosecutors do not present charges for indictment unless they have a good faith belief that all charges can be proved beyond a reasonable doubt.
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