seandotpolitics:

Can a sitting president be indicted? Often, in answering this question, commentators point to Office of Legal Counsel (OLC) opinions answering in the contrary. To whatever extent the writer agrees or disagrees with the opinions’ conclusion, the government’s position on the matter is usually presented as a long-standing and clear “no.”

The reality is more complicated. The United States has addressed this question six times in both internal memos and briefs filed in litigation. And a review of these documents shows that it is far from clear what criminal prosecution steps are (or should be) precluded—and that there is no “longstanding policy” against indictment of the president. Consider the 1973 OLC memo stating that a sitting president should not be indicted. Far from being authoritative, it was essentially repudiated within months by the Justice Department in the United States’ filing in the Supreme Court in United States v. Nixon.  

Likewise, the most recent opinion—an OLC memo written in 2000—includes brief statements that a sitting president should not be indicted even if all further proceedings are postponed. But far from being definitive, this is a matter that could be reconsidered by the department. Moreover, of course, OLC opinions are not binding on state prosecutors (though state charges could raise federalism questions as well). The complex history of criminal proceedings against presidents and vice presidents suggests that these issues are not foreclosed.

Perhaps the most important point that emerges from a review of all the opinions is this: only once has the United States addressed the question of whether a president can be an unindicted co-conspirator. The conclusion was an unequivocal yes. Richard Nixon was so named in the Watergate indictment, and that inclusion was sustained by Judge John Sirica and defended by the United States in United States v. Nixon… No department opinion or filing has ever contradicted that position. The fact that it is permissible to name a sitting president as unindicted co-conspirator, moreover, tends significantly to undermine the only argument against indicting a sitting president.

Indicting a President Is Not Foreclosed: The Complex History

seandotpolitics:

In an extraordinarily heated public fight with the nation’s top two Democratic leaders, the combustible president confronted for the first time the enormity of the challenge he will face over the next two years: divided government.

House Minority Leader Nancy Pelosi (D-Calif.), the likely next speaker, and Senate Minority Leader Charles E. Schumer (D-N.Y.) called out Trump’s falsehoods. They exposed him as malleable about his promised border wall. They lectured him about the legislative process and reiterated to him that he lacked the votes to secure the $5 billion he seeks for the wall.

The Democrats also needled him for his party winning Senate contests last month only in reliably red states. They provoked him by highlighting the softening of the economy and the gyrations in the stock market. And they extracted from him a claim of personal responsibility for the current budget brinkmanship…

“When you feed yourself a diet of adoration and echo chambers, you aren’t well prepared to handle actual pushback,” said Stu Loeser, a New York-based Democratic strategist and former aide to Schumer. “The president came into office bragging that he was the world’s greatest dealmaker, but he is yet to show that to the American people.”

Several White House advisers and GOP congressional aides said they believed Trump damaged himself by agreeing to own a possible shutdown and so vividly saying he would not blame it on Schumer, as he [falsely] did an earlier shutdown.

‘This has spiraled downward’: Democrats introduce Trump to divided government

seandotpolitics:

The Trump administration went to the Supreme Court on Tuesday, seeking an order that would allow it to enforce its new policy barring asylum claims by those who cross into the country at the southern border without authorization.

Justice Elena Kagan has called for a response to the Justice Department’s request by noon Monday, Dec. 17.

On Dec. 7, the US Court of Appeals for the 9th Circuit denied the Justice Department’s request to put on hold a district court judge’s order that halted the policy’s enforcement…

At the 9th Circuit, Judge Jay Bybee — a George W. Bush appointee who has, in the past, written strong defenses of executive power (including signing the opinions now known as the “torture memos” in the Bush administration) — wrote the court’s 2–1 opinionholding “that the Rule is likely inconsistent with existing United States law” and therefore upholding Tigar’s order, treating it as a preliminary injunction.

Although DOJ questioned Tigar’s order as “unwarranted judicial interference,” Bybee shot back that “if there is a separation-of-powers concern here, it is between the President and Congress.”

“Here, the Executive has attempted an end-run around Congress,” Bybee continued. “In combination with the rule, [the presidential order] does indirectly what the executive cannot do directly: amend the [Immigration and Nationality Act]. Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the executive legislate from the Oval Office.”

The Trump Administration Just Asked The Supreme Court To Let It Enforce Its New Asylum Ban