Before you read this post, you need to know that prosecutors have absolute discretion in whom they prosecute. Thus, no court would issue the writ requested. However, it does not mean there might not be another way to invalidate the DOJ policy not to indict sitting presidents.
A Petition to the US District Court, Southern District of New York for a Writ of Mandamus to order the US Attorney for the Southern District of New York to seek an indictment of, and prosecute if successful, President Donald J. Trump for his Participation in violation of the Federal Campaign Finance Laws for which Michael Cohen is currently serving a jail sentence.
Petitioner: T. Edward Westen, U.S. Citizen
10-16-2000 “A sitting President’s Amenability to Indictment and criminal Prosecution.”
P222: “…would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned function’s,”
It seems that the brief filed by Bork in 1973 to indict and try vice-President Spiro Agnew, needed a rational to do so, that rational used the straw argument that he was not President and it would be of little consequence. The thing is that missed the point that the President is of equally little consequence, unless, you ask the President. The whole political climate of the Revolutionary period in this county and the period in which the Constitution was written was premised on the fact that no one is above the law. (See the Declaration of Independence list of Grievances against the King, who was above the law.)
Indeed, the DOJ memo upon which the unindictability of the President is based concludes after an exhaustive examination that there is no basis in the Constitution for making the President unindictable (above the law). The President can not be an exception. Sworn to uphold the law, if he or she violates a law, he or she is obligated to resign, for his or her failure in meeting a sworn obligation to uphold the law. Failing a resignation, the Department of Justice should indict and try the President as it would any other person.
Notice that US District Attorney’s Office in the Southern District of New York, convicted Michael Cohen on one count of campaign finance violations at the behest of the President and only named the President as an inindicted co-conspirator. The President was the instigator. The US Attorney’s Office had sufficient evidence to obtain a guilty plea for Michael Cohen. It is customary for prosecutors to use small fish to go after the big fish. In this case they threw the small fish away and used the pretext of this memo (see title above) as an excuse not to indict the big fish, or they let the mastermind escape prosecution. If the small fish is willing to testify against the mastermind, it is customary to use testimony from underlings to legally prosecute masterminds. That after all is the name of the game.
Further, the President was only a candidate when he committed the the action for which he was named an unindicted co-conspirator. He allegedly broke the law in an attempt to win the presidency where he, under the terms of this memo title above, would be immune from prosecution. So, the DOJ memo would seem to say, “we will not prosecute, those whose criminal actions result in their winning the office.” This is no way to run a criminal justice system.
A major reason for attaching punishments to some actions, such as campaign fiance violations, is to deter the crime. There are two kinds of deterrence, general and specific. For general deterrence purposes, it is necessary that the President be indicted an prosecuted and punished if found guilty to deter future candidates from breaking the campaign finance laws. One of the specific deterrents in this case is the President is running for re-election; he filed the day after his inauguration, so one thing is to keep him from doing it again. Then there is the second and more more general use of specific deterrence, if you take a criminal out of circulation the criminal will be unable to commit other crimes. In this case since he was not prosecuted, he may have been emboldened to commit more crimes while in office. To whit:
Excluding the President from indictment and prosecution while he is in office is a rational for the President to use all the tools of his office to stay in office at whatever the costs. He might, for example use his appointment power to appoint and Attorney General, US Attorneys and others in the DOJ to help frustrate the potential for him ever being called into account. This would mean the failure to indict and prosecute the sitting President would result in “unconstitutionally undermin[ing] the capacity of the executive branch to perform its constitutionally assigned functions.” Instead the Federal Government would become a criminal enterprise more horrific than the Mafia or any other organized crime ring in our or any countries’ history.
Once the President, who has escaped indictment, realizes he or she is beyond the law, he or she may decide to bypass Senate Confirmations and appoint acting heads, appointments which while temporary are beyond the impeachment power of Congress. Such appointments while expiring at the end of any given session of Congress, literally makes the appointees, who may or may not be qualified to serve in the positions, slaves to the whim of the President. Indeed, it may well result in the temporarily appointed officials causing tax payer funds to be spend in a manner that enriches the President indirectly and directly. For example a temporary Secretary of Defense could cause Air Nation Guard flights to refuel in foreign civilian airports which support a business the president owns and require those Air National Guard Troops to bivouacked at places owned by the President during refueling stops causing tax payer dollars to be paid to the President in violation of the domestic emoluments clause. Further the President could influence others to spend money at his business such as “suggesting” the vice-President stay at a resort the President owns some 175 miles from where he is staying overseas. Then too the President could directly cause tax payer dollars to be paid to his or her golf resorts by taking his weekend there along with his security detail and others in his entourage. Imagine the dollars the Secret Service would be forced to spend for golf carts alone over several hundred golf outings. And this is not to mention the hotel and restaurant bills the Secret Service alone would pay using taxpayer dollars! All of this is in violation of the domestic emoluments clause of the Constitution.
Once the President feels secure in not being liable for his or her actions, he or she will make end runs around the separation of powers by sequestering or transfiguring appropriated funds to non-appropriated purposes. Indeed, he or she might well attempt to fund projects that Congress has refused to funded. In addition to usurping the power of the of the purse, the President may well decide not to cooperate with Congressional Oversight by directing, either openly or covertly or through an Attorney General, Executive Departments not to comply with Congressional Committee requests, instruct those persons subpoenas by Congressional Committees to claim executive privilege. The President’s usurpation of law making powers and refusal to cooperate with Congress may well end with the President refusing to follow court ordered actions—a constitutional crisis.
Although the President’s extra-Constitutional and extra-legal actions, may one venture to call them unconstitutional and illegal, there may well become a point where the criminal activities of the Federal Government become so extensive that the Courts themselves will become ignored at best or complicit at worst.
On balance, the Department of Justice memo and policy not to indict and prosecute a sitting president is an open invitation for the President to commit more and more acts for which he would be indictable and, perhaps impeachable, lacking a complicit Senate and or House. So, the whole criminal apparatus that could result from not indicting and prosecution a sitting president for crimes for which he or she has been implicated and identified, is a consequence of a DOJ Memo by Solicitor General Bork in 1973 that found it “convenient” to differentiate the Vice-President from the President so that Bork’s office could proceed with a Grand Jury Investigation of the Vice-President.
P 229”a President may not be able full to discharge the powers and duties of his office if he had to defend a criminal prosecution”
The DOJ memo dismisses the use of the 25th Amendment. However,simply put, the 25th Amendment should be used to allow the functions “discharge of powers and duties of his office” if the President is indicted and taken to trial. It is not the person in the office that is important, it is only necessary for someone to be in the office. If the Vice-President and a sufficient number of cabinet officials is convinced the President is unable to discharge his duties and powers during a trial they can declare him unable. Unless, the President has decimated his cabinet with acting officers rather than Senate confirmed ones. (As a side note, the Senate confirmed cabinet members should be the ones counted in under the 25th Amendment for purposes of declaring the President unable to fulfill the duties and powers of office for acting cabinet officials would be loath to find the President least either the Vice-President replace them with Senate confirmed officials or the President once returned to office, if he or she returns to office would remove them.) This well may be the case if a cunning criminal President is covering his or her proverbial behind. However, in the interim the Congress can set up an alternative method for declaring a President unable to fulfill his or her duties and powers. Indeed, Congress should do that in any event.
However, in the case of the current occupant of the Presidency there is ample cause to argue he does not discharge his duties and powers in a manner we have come to expect a President to do do. Over 250 golf outing in two plus years, extensive “executive time” on the President’s schedule, regular “campaign rallies.” before a normal campaign would begin, long conversations with the hosts of Fox News are all ample suggestions that the current incumbent is rather selective in how he defines his duties and powers. As to Powers, we have already partially address those in the previous section where the hypothetical examples of abuse were drawn from this presidency.
In addition, the current occupant of the Office of the Presidency is used to being in a court case so it should not distract him: “Of the 3,500 suits, Trump or one of his companies were plaintiffs in 1,900; defendants in 1,450; and bankruptcy, third party, or other in 150. Trump was named in at least 169 suits in federal court.” https://en.wikipedia.org/wiki/Legal_affairs_of_Donald_Trump
Obviously, the current President would not be distracted by a legal case, even a criminal case in which he is the defendant given his daily use of law suits.
The DOJ memo spends a lot of ink discussing the time demands on the President. That the current occupant of the Oval Office is an unindicted co-conspirator in a plot to break the campaign fiance law to win the office, time for trial is a silly point to raise when the line of secession is clear and the immediate solution is the 25th Amendment. If any one person were essential to the role of the Presidency, George Washington would not have set a two term limit by example and Congress would not have reacted to Franklin Delano Roosevelt’s four elections to the office with the 22nd Amendment. The time of a President is no more valuable than the time of the janitor in the White House. Both potions can be filled by regular means in the case of an inability to perform the duties and powers required of the job by any competent and qualified person. Indeed, from resent history, the janitor may be more difficult to replace.
The difference between a democracy, in the case of the US a democratic republic, and most other forms of government is that everyone is equal in the eyes of the law. Yes, there are special cases such as provisions for minors, restrictions on practicing some professions just to cite two situations where not everyone is treated equally under the law; but, no one in a democratic republic is above or beyond the law. Specifically, no one is exempt from obeying the law and if one violates a criminal law, one is then subject to prosecution.
As the DOJ memo asserts the President is the chief law enforcement officer and ultimate authority for initiating and crying through prosecutions through his or her appointment powers to the Department of Justice and ultimate ability to fire or discharge officers in the Justice Department. As one reads the DOJ treatment of the President’s position relative to indictments, prosecutions, and ultimately punishments, one is struck by how it totally ignores the President’s culpability under the law and personal responsibility for any actions he or she commits that are criminal violations. Rather the DOJ Memo looks as what might be termed the inconveniences to the President if charged, the possibility of a prosecutor harassing the President (from his or her own appointees?), the awkwardness of DOJ officials prosecuting their boss, and a bunch of irrelevant information.
With its Memos and the polity the Memos stimulated, there was a political decision made about criminal matters. There is no prosecutor discretion, the DOJ made a blanket policy of not indicting a sitting president, their boss. The United States has taken stands against mixing political and criminal matters. Yet, the DOJ takes a political stand regardless of existing evidence of a crime apparently committed by a sitting president, before or during his time in office. If one man is above the law, then there will be others. One man or woman can not, for political reasons, be subjected to or above the law.
If one man or woman is above the law, he or she may work injustices on others. Thus a president above the law may end up trampling the rights, freedoms, and properties of others since he or she can not even be indicted to face the consequences in a court of law for his or her actions.
The US Constitution guarantees the States a republican form of government (Article 4, Section 4). Republican in this context means representational. The United States Constitution outlines the rules for our National Republican form of government. The rules are far less complicated than most would think. As we have already discussed, nowhere in this republican document is the President immune from indictment, prosecution or punishment. In the states in the Union, whose constitutions conform to the three branches, republican, governments models in the US Constitution, none of their officers, elected or appointed, are immune from indictment, prosecution, or punishment upon conviction. It is not unheard of for governors to be indicted. It is not unheard of for the chief prosecutor in the states or their subdivisions to be indicted. So the thorny issue that the DOJ memos seem to wrestle with go without remark, and the several states proceed with normal criminal proceedings against their officers elected or appointed. Indeed, if a sitting president is indictable for a crime in a state, there is no reasons why a state prosecutor would not proceed with a grand jury or a true bill, an indictment, prosecution and if guilty, a state judge would impose an appropriate penalty under the state law violated. Indeed, under Federal precedent, the Federal Government may not intercede in a state case. The DOJ Memo does not protect the President in a state criminal proceeding.
The DOJ memos discuss the awkwardness of indicting and prosecuting the person who is, in fact, the appointing authority over their department. The Memo asserts it would be as if the prosecutor were prosecuting him or herself. No, the DOJ attorney trying the case would be prosecuting on behalf of the United States of America, not on behalf of the sitting president. Indeed, no prosecutions are undertaken on behalf of or in the name of the President of the United States. All DOJ employees take an oath to uphold the Constitution not to follow the orders and whims of the president. Since the US laws are promulgated under the US Constitution, the D0J is obligated to apply the law, not some memo they have relied upon for dodging the issue of doing their job with a potentially criminal president. The application of the law is not and should not be for political convince. Rather, applying the law should be to achieve the ends of the law which is to prevent behaviors which are deemed by Congressional Action and approved by some president to be inappropriate in this Republic. If the law violated had meant to exempt any person or class of persons, it would have been so written. Congress does not generally exempt classes of citizens from falling under the law except explicitly (see the exemptions for Congressmen in hiring and employment practices).
The DOJ policy of not indicting the president is simply absurd in a democracy. We rebelled against a king listing grievances against him which largely asserted the king was above the law and we could not tolerate that. By not indicting and if successful, prosecuting a sitting president we will return to the conditions against which we rebelled in 1776—a tyranny.
Petitioner comes to the court under The first Amendment’s stipulation that petitioner has the right “to potion the Government for a redress of grievances,.” Specially, the Court is a branch of the Government as stated in Article III of the Constitution. Thus, petitioner comes to this court with a petition as stated below. And Petitioner comes to the court under the 10th Amendment’s reservation that powers not delegated to the United States by the Constitution, no, Amendment to the States,are reserved the States respectively, or to the people.” Clearly an individual citizen, which Petitioner is, is include in the “people.” Since no one in the Congress or the Executive sees fit to compel the US Attorney for the Southern District of New York to indict and prosecute the sitting president for the crime for which he was named an unidicted co-conspirator, petitioner exercise the power reserved to the people to request a writ of mandamus for the US Attorney for the Southern District of New York to uphold his oath and do the necessary due process work, in good faith, to indict and then if successful therein prosecute the sitting president for the crime for which he was named an unindicted co-conspirator for which one Mr. Michael Cohen is presently serving a sentence in the federal penal system.
The bottom line is the DOJ is a creation of Congress. Indeed, the Attorney General, the government minister or officer in charge of DOJ is a creation of Congress even though appointed by and confirmed by the Senate, normally. But, Congress has not delegated the authority to exempt individuals and classes of individuals to never indict members of the class to DOJ. In this case the class of persons is “a sitting President..” Unlike quasi-legislative and quasi-judicial agencies, the DOJ policy is not based on a legislative power granting them the authority to amend existing Statutes to exclude their boss, the President. Hence, even if a court finds the DOJ memos upon which this policy is based persuasive in the abstract, the policy is still illegal and extra-constitutional. In addition, the policy has the net effect of making the person in the Office of the President the equivalent of a king with the power to ignore any law and make things up as he goes. This was one of the main thrusts of the crimes of the King in the Declaration of Independence, the King was arbitrary (another way to say, he made things up as he governed) in his dealing with his colonial subjects. The DOJ has by its action amended the Constitution to make the Article Two Branch of Government, the only branch that has any power. The policy of not indicting and presumably not prosecuting if indicted a sitting president eviscerates both the Article One and the Article Three Constitutional Branches of our government. For such an exception to the criminal laws of this nation are an effective grant of tyrannical power to the sitting President. DOJ, does not have the power to Amend the Constitution. The power is specifically address in Article V which does not stipulate a path to Amendment that includes DOJ Policy. Hence, DPO policy of not indicting a sitting president can not stand as it is prima fascie unconstitutional.
Surely the US Attorney for the Southern District, or his representation, will argue that a sitting president can not get a fair trial for any number of reasons ranging from partisan biases jurors may have to information jurors may have. So far, as this court has, as petitioner is sure, found, the difficulty of impaneling a petit jury, is not a reason not to try an accused for alleged criminal behavior.
In the event the Court rules that the petitioner, being one citizen does not have standing to petition for a writ of mandamus or an alternative the court finds appropriate, Petitioner asks the Court how many of his fellow citizens need to join him in his quest for justice to obtain standing to petition the court?
The US Attorney for the Southern District of New York may well argue that if he indicts the President that the President could fire him. While defendants in criminal cases have the right to discharge defense attorneys, it is almost inconceivable that a judge in a criminal case would allow a defendant to fire the prosecutor. So, at worst, the US Attorney for the Southern District of New York would find him or herself working without a paycheck, Federal office space, and staff.
If the court feels that either the US Attorney for the Southern District of New York would face an undue burden by working without pay or support, or given the US Attorney for the Southern District of New York is an appointee of the President and that accordingly the US Attorney for the Southern District of New York would not pursue the indictment with all vigor and, if necessary, prosecution of the President in the case of obtaining and indictment, then Petitioner would offer his attorneys to do the work and amend this pleading to have the US Attorney of the Southern District of New York provide Plaintiff’s attorneys with all documentation and evidence in this and allied cases including but not limited to the case against Michael Cohen.