Posted on 10/28/2016 6:02:37 PM PDT by drewh
The 2016 Presidential election is 11 days away, and the FBI just announced that they are reopening their investigation into Hillary Clinton‘s private email system. With the Democratic candidate once again the subject of a criminal investigation, it raises many questions as to what happens if she is indicted or relinquishes her candidacy before the election, or even after. The law is hazy in some of these situations, so let’s tackle them one by one.
1. If Clinton is indicted before the election
The FBI merely said that they are reopening their investigation to examine new emails that came to light. They have yet to even determine whether the emails are actually evidence of criminal activity, let alone decide whether or not to prosecute. Therefore, it’s highly unlikely that an indictment would come before November 8. If it did, the indictment itself wouldn’t mean that Clinton could no longer run, as an indictment is only an accusation, not a conviction. As my colleague Elura Nanos wrote earlier this year, Clinton could theoretically hope that voters hate Trump enough that they still vote for her (and hope that she isn’t convicted before taking office).Of course, even if she wins on November 8, the nature of our electoral system makes it so that the members of the Electoral College could theoretically go rogue and not vote for Clinton, even if their states tell them to. George Washington University law professor John Banzhaf wrote recently that only 30 states have laws on the books prohibiting this from happening, and that those laws have never been enforced and might bee unconstitutional.
More likely, however, is that she would be pressured — by herself, the public, or the Democratic party — to give up her candidacy.
2. If Clinton steps down before the election
Should Clinton relinquish her candidacy before the election, the Democratic National Committee has rules in place for what happens next. Article 2, Section 7 of the DNC Bylaws says that if there is a vacancy on the national ticket, a special meeting of the Committee “shall be held on the call of the Chairperson,” where they would choose a new candidate. Such meetings make decisions based on a majority of those in attendance. Since we are exactly 11 days away from the election, there is one major problem: The ballot deadlines have passed in nearly every state. For example, in West Virginia, the law says a candidate must withdraw “no later than eighty-four days before the general election.” So the Democratic leadership would likely have to wage a public campaign to tell voters that if you vote for Clinton/Kaine, you are really voting for Biden (or whoever it maybe)/Kaine. Then the electors would have to change their vote for the new ticket when they meet on December 19th, 2016.
3. If Clinton wins the election and is indicted before the inauguration
Here’s where it starts getting tricky.
As mentioned earlier, an indictment is far different from a conviction. An indictment does not disqualify a person from being eligible for the presidency (neither does a conviction, technically, but being in jail would probably get in the way). Should Clinton be indicted after winning the election but before officially taking office, she could try to play beat-the-clock and hope to take office before her case concludes. Once a person is in office as President, it gets even more complicated, as we’ll see later. Should Clinton be indicted and convicted prior to her inauguration, and end up in jail, she may be deemed incapacitated, in which case Section 3 of the 20th Amendment kicks in and the Vice President-Elect, in this case Tim Kaine, would become President. (though that seems unlikely as the wheels of justice do not turn that fast)
4. If Clinton wins the election and steps down before the inauguration
If Clinton becomes President-Elect and decides to step down before her inauguration, either due to being indicted or out of fear that an indictment may be imminent, it would be similar to the situation just described, and Kaine would become President. However in a situation where a candidate steps down after the general election, but before the Electoral College chooses the winner, federal law says the electors would be able to vote for whomever they want, although states may pass their own laws controlling this situation.
5. If the investigation continues after the election and Clinton wins and is inaugurated before a decision is made. Could Clinton be indicted when she becomes President?
The law is unsettled when it comes to this situation, but most opinions tend to believe Clinton would luck out, due to the philosophy that Presidents — and only Presidents — are immune from prosecution while in office.
The Department of Justice addressed this in a memorandum by the Office of Legal Counsel (OLC) in 1973. That memo said that prosecution of a sitting President would undermine the power of the executive branch and its ability to function. In 2000, a new memo reviewed that determination and agreed that a President is immune from indictment and prosecution for the duration of their time in office. Of course, that memo acknowledged that no court has ruled on this issue yet. It almost happened during the 1974 Watergate scandal.
Indeed, the issue was argued before the Supreme Court. White House attorney James D. St. Clair argued that because the Constitution says “The executive power shall be vested in a President of the United States of America” that includes federal prosecutions. St. Clair argued that since the President controls prosecutions, the President isn’t subject to them himself. However, Special prosecutor Leon Jaworski argued that the executive branch has evolved since 1789 to include the Cabinet and others, so this line of reasoning is faulty.
St. Clair also mentioned that the Constitution says that after an official is impeached and convicted by the Senate, they are “liable and subject to indictment, trial, judgment and punishment, according to law.” He took that to mean that a President is only able to be prosecuted after being removed from office. Jaworski argued that this line applies to all federal officials subject to impeachment, not just Presidents. Since other officials are subject to prosecution, it cannot mean that impeachment is the only method of charging a President.
Alas, Chief Justice Warren Burger decided that it wasn’t necessary to rule on this issue in order to address the matter that was before the Court. So at this point, we just don’t know if Clinton could be indicted as a sitting president. The law is still murky.
So, what about impeachment? Pretty clear here. The House of Representatives determined in 1873 that Presidents cannot be impeached for offenses they committed before they took office. Since the conduct would have taken place prior to her becoming President, she couldn’t be impeached for it.
On top of all that, as LawNewz‘s Chris White noted, the Article II of the Constitution says the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” So theoretically, President Hillary Clinton could pardon herself.
Long story short, the Department of Justice can very well affect who our next President is. If they move swiftly to indict, or if Clinton believes she’s in trouble, she could drop out before November 8. Alternatively, if an indictment comes soon after Clinton wins the election, she could still feel pressure to step down before she takes office. It all depends on what the FBI finds in these emails, what they decide to do about it, and when. But the clock’s ticking.
“If the investigation continues after the election and Clinton wins and is inaugurated before a decision is made. Could Clinton be indicted when she becomes President?
The law is unsettled when it comes to this situation, but most opinions tend to believe Clinton would luck out, due to the philosophy that Presidents — and only Presidents — are immune from prosecution while in office.”
At that point, the People would remove her.
I wouldn’t count any chickens. Comey is still FBI director. However, another scandal may convince some more people that she really is a criminal and a liar.
My guess would be that Huma and Hillary were keeping it as reference material. However....it was not secure.
The fact that it was "hidden" at Huma's is "intent".
>> of the DNC Bylaws says that if there is a vacancy on the national ticket, a special meeting of the Committee “shall be held on the call of the Chairperson,” where they would choose a new candidate.<<
Makes you wonder who the dnc would choose if such a happy thing were to occur. Not the kaine mutiny — he is on the ticket as a sop to the bern bots.
plugs? phauxahauntis?
If, as has been reported, the FBI have to get a warrant to get at these emails and takes as long as they have previously, it seems unlikely they will indict before the election.
The FBI doesn’t re-open a case that is “maybe...maybe not”. They’ve got something hard here (sorry for the pun) and Comey had not choice as there would have been a revolt within FBI if he hadn’t gone public.
Since neither are happening, at least prior to this election, I didn't need to read any further than the title of this thread.
Hillary ain’t stepping down. She will destroy everything rather than step down.
Huma is a Dead Woman Walking.
She will never drop out or step down. Only someone that cares about their country would do that. Hillary only cares about 2 things, Hillary and amassing power, period.
This source says one possibility is Hildabeast would hope the voters hate Trump enough...
Well, that was enough for me to know which side this esteemed publication is on...
There are three other legal candidates on the ticket. Just because a "party" loses it's candidate does not mean the election must have an alternate.
Is there some law in the Constitution which says a Dem and a Rep must be a part of the choice for President? What if one party goes away? Do we stop having Presidents?
There is nothing in the Constitution that you suggest. Nothing.
+1
The Dems are gonna start backing away from Hillary very quickly. They were willing to back her as long as all the dirt was kept under wraps, but if Wikileaks has the 33,000 Hillary e-mails as they claim and starts releasing them as promised, you’ll see them all diving and jumping into the lifeboats to escape the sinking of the SS Hillary!
That's crap.
An impeachable offense is whatever a majority of the House and two thirds of the Senate deem it to be. And, although the Chief Justice presides over the impeachment trial, he and the Court have no power to review the outcome.
If Shitlery drops out, oh well...Trump life goes.
The worst possible outcome to this election would be for Hillary to be elected and then for her to resign and leave Tim Kaine to be President.
The American Conservative Union has been conducting the Ratings of Congress for five decades. Consequently, we have lifetime ratings for 18 VP nominees for half a century. Conservatives will be pleased to know that Mike Pence is the most conservative nominee the country has seen in 50 years (99% alignment with ACU). However, most Americans will be stunned,to learn that the single most Left Wing VP nominee in our lifetime is Tim Kaine, the only nominee with a perfect 0% lifetime rating. That puts him to the left of Senator Barack Obama (10%), Senator Hillary Clinton (8%) and Senator Bernie Sanders (6%). Out of 100 Senators and 435 House Members, that makes Tim Kaine the single most radical in ALL OF CONGRESS!
Hillary has picked a wolf in sheep's clothing who is fully committed to continuing Barack Obama's fundamental transformation of America. Please pass this on so Americans know the truth about Tim Kaine. Below is the list of 18 VP nominees going back to Hubert Humphrey. Kaine must NOT be elected.
VP Nominee ACU Rating
Mike Pence 99.0
Dick Cheney 90.8
Jack Kemp 88.8
Paul Ryan 88.6
Bob Dole 82.4
Dan Quayle 80.3
Gerald Ford 64.0
Lloyd Bentsen 40.5
Joe Lieberman 15.1
Al Gore 14.6
Eagleton 12.9
Joe Biden 12.4
John Edwards 12.2
Geraldine Ferraro 8.3
Edmund Muskie 6.4
Hubert Humphrey 5.0
Walter Mondale 3.7
Tim Kaine 0
Yes. She would not step down. That would be away from power, and she sees the reins of power as her salvation.
She could pardon herself. She could pardon others.
She would have enormous power that she has lusted for all her life.
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