Colorado’s Secretary of State Jena Griswold has announced that she will prosecute President Donald Trump as an accomplice to anyone attempting to vote twice in November’s presidential election.
Last week, Trump encouraged voters in North Carolina – a crucial swing state – to submit their ballots by mail and then show up to the polls to vote in person to make sure their vote gets counted.
Voting twice is a felony and so is facilitating it.
“Trump told postal voters in North Carolina to vote twice – once by mail and once in person – to make sure their first vote counts. ‘Send it in early and then go and vote… you can’t let them take your vote away,’ he said. Voting more than once in an election is illegal,” Channel 4 News wrote on Twitter.
“Send it in early and then go and vote… you can’t let them take your vote away.”
Donald Trump suggests postal voters in North Carolina vote twice – one by mail and once in person – to make sure their first vote counts.
Voting more than once in an election is illegal. pic.twitter.com/H3wtgnftLC
— Channel 4 News (@Channel4News) September 3, 2020
Trump’s remarks drew immediate condemnation from Griswold, who quickly accused the president of “encourag[ing] illegal behavior intended to undermine confidence in elections.”
On Monday, Griswold declared that she will hold Trump accountable – a bold challenge to an existing, albeit hotly disputed, Justice Departmemt doctrine that a sitting president is immune to criminal prosecution.
“In Colorado, we take double voting seriously and refer all suspected cases for legal enforcement” Grisold tweeted on Monday. “If it makes sense, I will include @realDonaldTrump in the referral for prosecution. He may not have presidential immunity anymore depending on the election.”
In Colorado, we take double voting seriously and refer all suspected cases for legal enforcement. If it makes sense, I will include @realDonaldTrump in the referral for prosecution. He may not have presidential immunity anymore depending on the election.
— Jena Griswold (@JenaGriswold) September 7, 2020
George Washington University law professor Paul Rosenzweig, a long-time critic of DOJ policy, encouraged Griswold to go for it, and that state’s may not necessarily be bound by a memo.
“There is a good argument a) that presidential immunity doesn’t exist at all; and b) if it does it is a matter of prudential deference by DOJ that doesn’t bind a State AG,” Rosenzweig tweeted.
There is a good argument a) that presidential immunity doesn’t exist at all; and b) if it does it is a matter of prudential deference by DOJ that doesn’t bind a State AG.
— Paul Rosenzweig (@RosenzweigP) September 7, 2020
As it stands, there is no law or official consitutional barrier that prevents a president from facing criminal indictments while in office. There exists only one memo dating back to 1973 that was drafted during the Watergate Scandal. At the time, the Justice Department’s Office of Legal Counsel determined that President Richard Nixon was immune to prosecution because it would undermine his ability to discharge the duties of his office.
In 2000, the OLC issued an opinion on that very issue, following the impeachment of President Bill Clinton.
The OLC memo does not in and of itself preclude a president from being indicted, the opinion says.
“Since the Department set forth its constitutional analysis in 1973, the Supreme Court has decided three cases that are relevant to whether a sitting President may be subject to indictment or criminal prosecution.12 United States v. Nixon, 418 U.S. 683 (1974), addressed whether the President may assert a claim of executive privilege in response to a subpoena in a criminal case that seeks records of communications between the President and his advisors. Nixon v. Fitzgerald, 457 U.S. 731 (1982), and Clinton v. Jones, 520 U.S. 681 (1997), both addressed the extent to which the President enjoys a constitutional immunity from defending against certain types of civil litigation, with Fitzgerald focusing on official misconduct and Jones focusing primarily on misconduct “ unrelated to any of his official duties as President of the United States and, indeed, occurr[ing] before he was elected to that office,” the opinion states. “None of these cases directly addresses the questions whether a sitting President may be indicted, prosecuted, or imprisoned.”
Precedent, as well as the Constitution naming impeachment as the only means of removing a president from office, on the other hand, may mean that presidents do enjoy executive immunity.
“For these reasons we believe that the Constitution requires recognition of a presidential immunity from indictment and criminal prosecution while the President is in office.”
But as LawFareBlog noted in 2018, during the height of Special Counsel Robert Mueller’s investigation, the issue remains a nebulus one, and one that needs to be put to rest.
“It is impossible to predict whether a prosecutor would ask the attorney general for authorization to indict—or to make the president an unindicted co-conspirator—without knowing the degree and nature of any criminality that might be uncovered, and how including or not including the president in an indictment would affect the trial of other conspirators, Walter Dellinger wrote. “But the possibility of including the president in an indictment is not categorically foreclosed.”
Last month, prosecutors asked a federal judge in New York to renew an indictment of mortgage fraud against Trump’s former campaign Chair Paul Manafort that was dismissed last December over double jeopardy concerns.
Prosecutors argued that the state charges “contain different elements and were designed to prevent very different kinds of harm than the federal offenses of Bank Fraud and Conspiracy to Commit Bank Fraud,” and that double jeopardy should not apply.
So what happens when a president openly commits a felony, encourages others to do so, less than two months before what will be a clusterf*ck of an election, with an attorney general that is loyal to the president and not the rule of law?
Can states exercise their sovereignty and indict a sitting president without the blessing of the Justice Department?
Thus, Griswold appears poised to test how far state’s rights extend. Brace for another constitutional crisis.
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