Thursday, October 20, 2005

No immunity for Cheney : Bork DOJ memo says VP can be indicted

This is all a game of "What if " right now.  But is a gloriously gleeful game that raises all sorts of interesting legal and philosophical questions.    For Cheney the 1st question  has always been "can he even BE indicted?"  

He is after all the Co Vice President.   Well the good news is:" Yes He Can".  

 IF Ol' Tricky Dick Cheney were to find himself staring at the business end of an indictment this week, he   Won't be able to shake it off simply by invoking executive privilege to save his sorry hide.  At least that is conclusion reached in  1973, in an official DOJ opinion written nearly 25 years ago.  which was again endorsed by the DOJ in 2000

Of course conservatives will immediately attack the validity of the memo since it was written by none other than Noted Liberal Moonbat, Robert Bork---yes THAT Robert Bork:

Let's take a look:
(from the 2000 memo)

Office of Legal Counsel ("OLC") prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office...

The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process.


And the memo has already been used against a sitting Vice president specifically:

On October 5, 1973, less than two weeks after OLC issued its memorandum, Solicitor General Robert Bork filed a brief in the United States District Court for the District of Maryland that addressed the question whether it would be constitutional to indict or criminally try a sitting President. Then-Vice President Agnew had moved to enjoin, principally on constitutional grounds, grand jury proceeding against him. See SG Brief at 3. In response to this motion, Solicitor General Bork provided the court with a brief that set forth "considerations based upon the Constitution's text, history, and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.

   As had the OLC memorandum, the Solicitor General's brief began by noting that "[t]he Constitution provides no explicit immunity from criminal sanctions for any civil officer."....In light of the textual omission of any express grant of immunity from criminal process for civil officers generally, "it would require a compelling constitutional argument to erect such an immunity for a Vice President." Id.

And the memo proved there was no such compelling argument to be made:

[t]he President's immunity rests not only upon the matters just discussed but also upon his unique constitutional position and powers . . . . There are substantial reasons, embedded not only in the constitutional framework but in the exigencies of government, for distinguishing in this regard between the President and all lesser officers including the Vice President.

The brief therefore determined that "[c]ertainly it is clear that criminal indictment, trial, and even conviction of a Vice President would not, ipso facto, cause his removal; subjection of a Vice President to the criminal process therefore does not violate the exclusivity of the impeachment power as the means of his removal from office." Id. at 13.

In fact, they concluded we could get along just fine without him:

Although the office of the Vice Presidency is of course a high one, it is not indispensable to the orderly operation of government. There have been many occasions in our history when the nation lacked a Vice President, and yet suffered no ill consequences. And, as has been discussed above, at least one Vice President successfully fulfilled the responsibilities of his office while under indictment in two states.

Id. at 18 (citation omitted). The brief noted that the Vice President had only three constitutional functions: to replace the President in certain extraordinary circumstances; to make, in certain extraordinary circumstances, a written declaration of the President's inability to discharge the powers and duties of his office; and to preside over the Senate and cast the deciding vote in the case of a tie in that body. Id. at 19. None of these "constitutional functions is substantially impaired by [the Vice President's] liability to the criminal process." Id.

In other words the WH may have some other tricks up its sleeve but hiding behind executive or constitutional privilege ain't gonna work.  

Now if we could just make with the indictin' and frog-marchin' and whatnot.....


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